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USA Statutes : massachusetts
Title : PART I. ADMINISTRATION OF THE GOVERNMENT
Chapter : TITLE XXI. LABOR AND INDUSTRIES
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Chapter 149: Section 1. Definitions Section 1. In this chapter the following words, unless a different meaning is required by the context or is specifically prescribed, shall have the following meanings:“Apprentice”, a person defined in section eleven H of chapter twenty-three.
“Assistant commissioner”, the assistant commissioner of the department of labor and industries.
“Associate commissioners,” the associate commissioners of the department of labor and industries.
“Buildings used for industrial purposes” or “industrial establishments” shall include factories, workshops, bakeries, mechanical establishments, laundries, foundries, tenement house workrooms, all other buildings or parts thereof where manufacturing is carried on, mercantile establishments as defined in this section, telegraph offices or telephone exchanges, express or transportation companies, private clubs, offices, letter shops, financial institutions, hotels, manicuring or hairdressing establishments, motion picture or other theaters and other places of amusement and garages.
“Child”, a person under eighteen.
“Commissioner”, the director of the department of labor.
“Co-operative courses”, courses approved as such by the department of education and conducted in public schools or any approved vocational school where technical or related instruction is given in conjunction with practical experience by employment in co-operating factories, manufacturing, mechanical or mercantile establishments or workshops or other co-operating employments.
“Department”, the department of labor.
“Discrimination”, dismissal from employment of, or refusal to employ, any person between the ages of forty-five and sixty-five because of his age.
“Employee”, as used in sections one hundred and five A to one hundred and five C, inclusive, shall mean any person employed for hire by an employer in any lawful employment, but shall not include persons under the age of eighteen engaged in domestic service in the home of the employer, or persons engaged in agricultural service, or employees of any social club, fraternal, charitable, educational, religious, scientific or literary association, no part of the net earnings of which enures to the benefit of any private individual.
“Employer”, as used in said sections one hundred and five A to one hundred and five C, inclusive, shall include any person acting in the interest of an employer directly or indirectly.
“Employment”, any trade, occupation or branch of industry, any particular method or process used therein, and the service of any particular employer; but it shall not include private domestic service by persons under the age of eighteen, or service as a farm laborer including all practices connected with agriculture, the tillage of the soil, the preparation and marketing of crops and the construction and maintenance of farm property and equipment, customarily performed by a farmer on a farm except the performance by a minor under the age of seventeen of structural painting or other work on the outside of any structure at a height of more than fifteen feet above the ground level. “Employment”, as used in sections one hundred and five A to one hundred and five C, inclusive, means any employment under contract of hire, expressed or implied, written or oral, including all contracts entered into by helpers and assistants of employees, whether paid by employer or employee, if employed with the knowledge, actual or constructive, of the employer in which all or the greater part of the work is to be performed within the commonwealth.
“Employment permit” or “permit for employment”, shall include any permit required by any provision of this chapter, in order to enable a child to be employed in any employment as herein defined, or in domestic service or service on a farm, or at home, or in an employment co-operating in a co-operative course.
“Extraordinary emergency”, danger to property, life, public safety or public health.
“Factory”, any premises where mechanical power is used in aid of any manufacturing process there carried on.
“Industrial disease” or “occupational disease”, any ailment or disease caused by the nature or circumstances of the employment.
“Industrial health inspector”, an inspector qualified by training and experience in matters relating to health and sanitation.
“Inspector”, an inspector of the department or of the office of the attorney general.
“Iron works”, a mill, forge or any premises where any process is carried on for converting iron into malleable iron, steel or tin plate, or for otherwise making or converting steel.
“Manufacturing establishments”, any premises, room or place used for the purpose of making, altering, repairing, ornamenting, finishing or adapting for sale any article or part thereof.
“Mechanical establishments”, any premises, other than a factory as above defined, where machinery is employed in connection with any work or process carried on therein.
“Mercantile establishments”, any premises used for the purposes of trade in the purchase or sale of any goods or merchandise, and any premises used for a restaurant or for publicly providing and serving meals and any premises used in connection with the service of cleansing, dyeing, laundering or pressing fabrics or wearing apparel.
“Place of employment”, every place, whether indoors or out or underground, and the premises appurtenant thereto, into, in or upon which any employee goes or remains either temporarily or regularly in the course of his employment.
“Print works”, any premises where the process of printing figures, patterns or designs upon yarn or cloth, or upon any woven or felted fabric not paper, is carried on.
“Safe” or “safety”, such freedom from danger to life, safety and health of employees as the nature of the employment will reasonably permit.
“Woman”, a female eighteen or over.
“Workshop”, any premises, room or place, not a factory as above defined, wherein manual labor is exercised by way of trade or for purposes of gain in or incidental to a process of making, altering, repairing, ornamenting, finishing or adapting for sale any article or part thereof, and to which or over which premises, room or place the employer of the persons working therein has the right of access or control; but the exercise of such manual labor in a private house or private room by the family dwelling therein or by any of them, or if a majority of the persons therein employed are members of such family, shall not of itself constitute such house or room a workshop.
Chapter 149: Section 10. Entry of places of employment for investigations Section 10. In order to make investigations under section six, members or employees of the department or the attorney general’s office may at any time enter places of employment, other than places of employment of persons engaged in domestic service in the home of the employer, when being used for business purposes.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 100. Hours of work without interval for meal; duration; violation of statute Section 100. No person shall be required to work for more than six hours during a calendar day without an interval of at least thirty minutes for a meal. Any employer, superintendent, overseer or agent who violates this section shall be punished by a fine of not less than three hundred nor more than six hundred dollars.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 101. Nonapplicability of statute relating to mealtimes and intervals for meals Section 101. The preceding section shall not apply to iron works, glass works, paper mills, letterpress establishments, print works, bleaching works, or dyeing works; and the attorney general, if it is proved to his satisfaction that in any other factories or workshops or mechanical establishments it is necessary, by reason of the continuous nature of the processes or of special circumstances affecting such establishments, including collective bargaining agreements to exempt them from the preceding section and that such exemption can be made without injury to the persons affected thereby, may grant such exemption as, in his discretion, seems necessary.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 102. Labor during mealtime without knowledge of employer Section 102. If a minor shall, without the orders, consent or knowledge of the employer or of the superintendent, overseer or other agent of the employer, labor in a manufacturing or mechanical establishment, factory or workshop during a part of any time allowed for meals in such establishment, factory or workshop, according to the notice required by section fifty-six, and if a copy of such notice was posted in a conspicuous place in the room where such labor was performed, with a rule of the establishment, factory or workshop forbidding such minor to labor during such time, neither the employer nor a superintendent, overseer or other agent of the employer shall be held responsible for such labor.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 103. Seats for employees; violation of statute Section 103. Employers shall provide suitable seats for the use of their employees and shall permit such employees to use such seats whenever they are not necessarily engaged in the active duties of their employment, and shall also provide for their use and permit them to use suitable seats while at work, except when the work cannot properly be performed in a sitting position or when such seats may reasonably be expected to result in an unsafe or hazardous working condition. Whoever violates this section shall be punished by a fine of not less than fifty nor more than two hundred dollars.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 104. Children participants in public exhibitions; violation of statute Section 104. No person shall employ a child under fifteen years of age, or permit him to appear as a participant in a theater, circus or any other public exhibition as a singer, dancer, acrobat, actor or in any other entertainment capacity; but this section shall not prevent the education of children in vocal and instrumental music or dancing or their participation in any exhibition of dancing conducted as a part of its graduation exercises by a school furnishing them instruction in dancing, or their participation in a church, chapel, school or school exhibition, or prevent their taking part in any festival, concert or other non-commercial exhibition upon the special written permission of the local licensing authority; nor shall it prevent children under fifteen from taking part on the stage for a limited period in a play or musical comedy in a theater wherein not more than two performances are given in any one day and not more than eight performances are given in any one week if the commissioner, after being satisfied that the supervision of such children is adequate, that their living conditions are healthful and that their education is not neglected, gives his written permission to such taking part. This section shall not prevent participation of a child under fifteen years of age in a fashion show, provided such child is accompanied by either one of his parents. Whoever violates this section shall be punished by a fine of not more than two hundred dollars or by imprisonment for not more than six months.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 104A. Repealed, 1982, 364, Sec. 1 WORK BY WOMEN AND CHILDREN Chapter 149: Section 105. License for theatrical exhibitions or shows in which children are employed Section 105. A license shall not be granted for a theatrical exhibition or public show in which children under fifteen are employed as acrobats or contortionists or in any feats of gymnastics or equestrianism, or in which such children attending the public schools are employed or allowed to take part as performers on the stage in any capacity, or if, in the opinion of the board authorized to grant licenses, such children are employed in such a manner as to corrupt their morals or impair their health; but this section shall not prevent granting the special permission authorized by the preceding section.
DISCRIMINATORY WAGE RATES BASED ON SEX PENALIZED Chapter 149: Section 105A. Discrimination forbidden; damages; actions in general; assignment of claim; limitations Section 105A. No employer shall discriminate in any way in the payment of wages as between the sexes, or pay any person in his employ salary or wage rates less than the rates paid to employees of the opposite sex for work of like or comparable character or work on like or comparable operations; provided, however, that variations in rates of pay shall not be prohibited when based upon a difference in seniority. Any employer who violates any provision of this section shall be liable to the employee or employees affected in the amount of their unpaid wages, and in an additional equal amount of liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated and any agreement between the employer and any such employee to work for less than the wage to which such employee is entitled under this section shall be no defence to such action. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and the costs of the action. At the request of any employee paid less than the wage to which he is entitled under this section, the attorney general may take an assignment of such wage claim in trust for the assigning employee and may bring legal action necessary to collect such claim, and the employer shall be required to pay an additional equal amount of liquidated damages, together with the costs of the action and such reasonable attorney’s fee as may be allowed by the court. The attorney general shall not be required to pay any filing fee, or other costs, in connection with such action. The commissioner may join various claimants against the employer in one cause of action. Any action based upon or arising under sections one hundred and five A to one hundred and five C, inclusive, shall be instituted within one year after the date of the alleged violation.
DISCRIMINATORY WAGE RATES BASED ON SEX PENALIZED Chapter 149: Section 105B. Violation of statutes; discharge or discrimination because of complaint, proceedings or testimony Section 105B. Any employer who violates any provision of sections one hundred and five A to one hundred and five C, inclusive, or who discharges or in any other manner discriminates against any employee because such employee has made any complaint to his employer, the attorney general, or any other person, or instituted, or caused to be instituted, any proceeding under or related to said sections, or has testified or is about to testify in any such proceedings, shall, upon conviction thereof, be punished by a fine of not more than one hundred dollars.
DISCRIMINATORY WAGE RATES BASED ON SEX PENALIZED Chapter 149: Section 105C. Entry of premises, and investigation to determine compliance with statute Section 105C. For the purpose of enforcing the provisions of sections one hundred and five A to one hundred and five C, inclusive, the attorney general, or his authorized representative, may enter places of employment, other than places of employment of persons engaged in domestic service in the home of the employer, may inspect pay rolls, may compare character of work and operations on which employees are engaged, may question employees, and may take such other action as is reasonably necessary to determine compliance therewith.
DISCRIMINATORY WAGE RATES BASED ON SEX PENALIZED Chapter 149: Section 105D. Entitlement of female employees; rights and benefits Section 105D. A female employee who has completed the initial probationary period set by the terms of her employment or, if there is no such probationary period, has been employed by the same employer for at least three consecutive months as a full-time employee, who is absent from such employment for a period not exceeding eight weeks for the purpose of giving birth or for adopting a child under the age of eighteen or for adopting a child under the age of twenty-three if the child is mentally or physically disabled, said period to be hereinafter called maternity leave, and who shall give at least two weeks’ notice to her employer of her anticipated date of departure and intention to return, shall be restored to her previous, or a similar, position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of her leave. Said maternity leave may be with or without pay at the discretion of the employer.
Such employer shall not be required to restore an employee on maternity leave to her previous or a similar position if other employees of equal length of service credit and status in the same or similar position have been laid off due to economic conditions or other changes in operating conditions affecting employment during the period of such maternity leave; provided, however, that such employee on maternity leave shall retain any preferential consideration for another position to which she may be entitled as of the date of her leave.
Such maternity leave shall not affect the employee’s right to receive vacation time, sick leave, bonuses, advancement, seniority, length of service credit, benefits, plans or programs for which she was eligible at the date of her leave, and any other advantages or rights of her employment incident to her employment position; provided, however, that such maternity leave shall not be included, when applicable, in the computation of such benefits, rights, and advantages; and provided, further, that the employer need not provide for the cost of any benefits, plans, or programs during the period of maternity leave unless such employer so provides for all employees on leave of absence. Nothing in this section shall be construed to affect any bargaining agreement or company policy which provides for greater or additional benefits than those required under this section.
A notice of this provision shall be posted in every establishment in which females are employed.
For the purposes of this section, an “employer” shall be defined as in subsection 5 of section one of chapter one hundred and fifty-one B.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 106. Drinking water; violation of statute; coverage of term “industrial establishments” Section 106. All industrial establishments and every person engaged in carrying on a construction project shall provide fresh and pure drinking water to which their employees shall have access during working hours. Any person owning, in whole or in part, managing, controlling or superintending any industrial establishment or construction project in which this section is violated shall, on the complaint of the local board of health, the selectmen of a town or an inspector, be punished by a fine of one hundred dollars. For the purposes of this section the term “industrial establishments” shall be deemed to include public garages and premises used by express, trucking and transportation companies where persons are employed.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 107. Water for humidifying purposes; violation of statute Section 107. The water used for humidifying purposes by any person operating a factory or workshop shall be of such a degree of purity as not to give rise to any impure or foul odors, and shall be so used as not to be injurious to the health of persons employed in such factories or workshops. Whoever violates this section shall be punished by a fine of not less than ten nor more than one thousand dollars.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 108. Thermometers for humidity and temperature; regulations; place; reading; record Section 108. In every weaving and spinning department in a textile factory wherein water is introduced for humidifying purposes there shall be provided, maintained and kept in correct working order, for the purpose of recording and regulating the humidity of the atmosphere and the temperature, at least one set of standardized wet and dry bulb thermometers, and, if required by an inspector, two sets of such thermometers, and the following regulations shall be observed in their use: (a) The thermometers shall be placed as directed or sanctioned by an inspector, and be plainly visible to the workers. (b) The occupier or manager or person for the time being in charge of the weaving or spinning department shall read the thermometers thrice in the day, namely, between seven and eight o’clock in the forenoon, between ten and eleven o’clock in the forenoon and between three and four o’clock, except in rooms lighted by gas, and then between four and five o’clock, in the afternoon of every day when persons are employed in any weaving or spinning department, and he shall record the readings of each thermometer in such department at each of the said times upon a form provided therefor, which, together with the regulations relating thereto, shall be furnished by the department of labor and workforce development. The records of the readings shall not be destroyed until the inspector in whose district the factory is situated has examined them and given his consent to their destruction.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 109. Nonapplicability of statute relating to thermometers; hygrometers; psychrometers; records Section 109. The preceding section shall not apply to textile factories equipped with such a number and type of standardized self-registering hygrometers, or psychrometers, or such a hygrometric system as the department approves, or using the sling hygrometer frequently to determine the actual moisture and temperature of the weaving or spinning department; provided, that the manner of using all such instruments or such system is approved by the industrial health inspector in whose district the factory is situated, and that the records of the readings from said instruments or system are not destroyed without the knowledge and consent of such inspector.
Chapter 149: Section 11. Reports by physicians generally Section 11. The department may require every physician treating a patient whom he believes to be suffering from any ailment or disease contracted as a result of the nature, circumstances or conditions of the patient’s employment to report such information relating thereto as it may require, within such time as it may fix, and it may issue a list of such diseases which shall be regularly reported upon by physicians, and may add to or change such list at any time. The department shall pay no fee for such report. Copies of all such reports and all statistics and data compiled therefrom shall be kept by it, and shall be furnished on request to the division of industrial accidents and the department of public health. No such report shall be subject to summons nor shall its contents be made public.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 110. Relative humidity limits Section 110. No owner, occupier or manager or person for the time being in charge of a textile factory shall permit the relative humidity in a weaving or spinning department in the textile factory under his control to exceed the following limits: PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 111. Sources of water for humidifying purposes; clean air ducts Section 111. Water used for humidifying purposes in a textile factory shall be taken either from a public supply of drinking water, or from some other source of pure water, or from a supply of water which, although in the opinion of the attorney general not suitable for drinking purposes, is sufficiently free from impurities to be not dangerous to the health of employees when used for humidifying purposes; and all ducts for the introduction or distribution of humidified air shall be kept clean.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 112. Failure to comply with statutes after request Section 112. Whoever fails to comply with any provision of sections one hundred and eight to one hundred and eleven, inclusive, after being requested so to do by an inspector, shall be punished by a fine of not more than three hundred dollars.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 113. Light, ventilation, cleanliness, sanitation and heat in establishments Section 113. Every factory, workshop, manufacturing, mechanical and mercantile establishment, railroad freight house, railway express terminal, public garages and premises used by express, trucking and transportation companies and any other building in which a person is employed, other than a building under construction, shall be well lighted, well ventilated and kept free from unsanitary conditions, and work rooms therein in actual use shall be properly heated during the period from October fifteenth to May fifteenth, according to reasonable rules and regulations adopted by the attorney general establishing minimum requirements with reference thereto; provided, however, that the provisions of this section shall not apply to such rooms which are under the supervision of the department of public health and are subject to the provisions of section seventy-three A of chapter ninety-four. Upon determination by the attorney general that any work room in actual use is not properly heated according to rules and regulations adopted by the attorney general, the attorney general may seek a cease and desist order in the superior court in the county where the work room is located.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 114. Investigations and suggestions relative to eyes and vision Section 114. The industrial health inspectors shall, when obtaining information concerning the proper lighting of industrial establishments, make such investigation concerning the eye and vision in their relation to occupational diseases, including injuries to the eyes of employees and to the pathological effects produced or promoted by the circumstances under which the various occupations are carried on, as in the opinion of the attorney general is practicable, and it shall from time to time issue such printed matter containing suggestions to employers and employees for the protection of the eyes of the employees as it may deem advisable.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 115. Devices and means to prevent injury to eyes; order; compliance; violation of statute Section 115. If it appears to an inspector that in any industrial establishment, from the nature of the work or the machinery used in connection therewith, or from other circumstances, there is danger of injury to the eyes of employees engaged in such work, and that the danger of injury may be decreased or prevented by any mechanical device or other practicable means, he shall, if the attorney general so directs, order in writing that such device or other means shall be provided therein; and the proprietors and managers of the industrial establishment shall comply with the order. Violations of this section shall be punished by a fine of not less than one hundred nor more than one thousand dollars for each week during which the violation continues, but a criminal prosecution for such violation shall not be begun unless a person has for four weeks after the receipt of a written order from an inspector neglected to comply therewith.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 116. Investigations as to light; notice to change; failure to comply with order Section 116. Upon the request of any inspector of the division of inspection of the department of public safety or upon the request of any five employees in a factory or workshop, the office of the attorney general shall investigate and ascertain whether or not such factory or workshop is adequately lighted. If the office of the attorney general is of opinion, after such investigation, that the factory or workshop is not properly lighted, it shall notify the owner or person in charge, and shall specify what changes should be made in order to light it properly, and the owner or lessee thereof shall make the changes so specified as soon as it can be done with reasonable diligence. If such owner or lessee fails to comply with any such order he shall be punished by a fine of not more than five hundred dollars, provided such failure is not the result of causes beyond his control.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 117. Ventilation Section 117. Every establishment in which one or more persons is employed shall be so ventilated that all gases, vapors, dust, fumes, or any impurity injurious to health, whether generated in the course of the work carried on therein or otherwise, shall, so far as practicable, be rendered harmless.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 118. Means to diminish inhalation of dust Section 118. If, in any place of employment, any process is carried on by which dust is caused which may be inhaled to an injurious extent by the persons employed therein, and it appears to an inspector that such inhalation would be substantially diminished without unreasonable expense by the use of a fan or by other mechanical means, such fan or other mechanical means, if he so directs, shall be provided, maintained and used.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 119. Hoods or hoppers and suction pipes for emery or buffing wheels or belts Section 119. Any person operating a factory or workshop where emery wheels or belts or buffing wheels or belts injurious to the health of employees are used shall provide such wheels and belts with a hood or hopper connected with suction pipes, and with fans or blowers, in accordance with the following section, which apparatus shall be so placed and operated as to protect any person using such wheel or belt from the particles or dust produced by its operation, and to convey the particles or dust either outside of the building or to some receptacle so placed as to receive and confine them.
Chapter 149: Section 11A. Occupational lead registry; blood lead testing reports; regulations; enforcement Section 11A. To assist in the identification and treatment of workers exposed to lead and to reduce the incidence of occupational lead poisoning in the commonwealth, an occupational lead registry shall be established within the division of occupational hygiene of the department of labor and industries.
Every clinical laboratory that performs blood lead testing on site, or that sends blood lead specimens to out-of-state laboratories for lead testing, shall report blood lead test results on individuals over the age of fifteen to the commissioner in a manner to be determined by the commissioner.
The report shall include the identity of the reporting laboratory; the name, date of birth or age, and blood level of the individual tested; the date the blood sample was drawn; and the name and address or telephone number of the health care provider ordering the test; and any other such information as the department deems necessary to carry out the provisions of this chapter. Results of free erythrocyte protoporphyrin or zinc protoporphyrin shall also be reported if available. A health care provider who has ordered a blood lead test shall, upon request by the department, provide information that the department deems necessary to carry out the provisions of this chapter. The clinical laboratory report and the provider information shall be maintained confidential and are not matters of public record; provided, however, that department of public health shall have full access to the reports and provider information for the purposes of research and analysis.
The department shall promulgate such regulations as it deems necessary for the implementation, administration, and enforcement of this chapter. Any person who violates a provision of this chapter, or any regulation adopted or issued thereunder shall be subject to a civil penalty not to exceed five hundred dollars for each violation. Each day such violation occurs or continues shall be considered a separate violation.
The superior court department of the trial court shall have jurisdiction to enjoin violations of, or grant such additional relief as it deems necessary or appropriate to secure compliance with the provisions of this chapter, or any regulations issued or adopted thereunder, upon petition of the attorney general or the department. The department shall not be liable for any filing fee in any such enforcement effort before the superior court.
Chapter 149: Section 12. Regulations prevailing over regulations of workmen’s compensation insurer Section 12. If any rule or regulation made under authority of section sixty-four of chapter one hundred and fifty-two conflicts with or differs from a rule or regulation of the department, its rule or regulation shall prevail.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 120. Form and place of hoods or hoppers; size and speed of blowers; approval by attorney general Section 120. Every such wheel shall be fitted with a hood or hopper of such form and so placed that the particles or dust produced by the operation of the wheel or of any belt connected therewith shall fall or will be thrown into such hood or hopper by centrifugal force; and the fans or blowers shall be of such size and shall be run at such speed as will produce a volume and velocity of air in the suction and discharge pipes sufficient to convey all particles or dust from the hood or hopper through the suction pipes and so outside of the building or to a receptacle as aforesaid. The hoods or hoppers shall be so constructed and the suction pipes and connections shall be suitable and efficacious and such as shall be approved by the attorney general.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 121. Nonapplicability of statutes relating to emery and buffing machinery Section 121. The two preceding sections shall not apply to grinding machines upon which water is used at the point of grinding contact, nor to solid emery wheels used in sawmills or in planing mills or in other woodworking establishments, nor to any emery wheel six inches or less in diameter used in establishments where the principal business is not emery wheel grinding.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 122. Violation of statutes relating to ventilation, dust and emery and buffing machinery Section 122. Violations of sections one hundred and seventeen to one hundred and twenty-one, inclusive, shall be punished for the first offence by a fine of not less than twenty-five nor more than one hundred dollars, and for a subsequent offence by the fine aforesaid or by imprisonment in jail for not more than two months, or both. A criminal prosecution for the violation of section one hundred and seventeen or one hundred and eighteen shall not be begun unless an employer has for four weeks after the receipt of a written order from an inspector neglected to comply therewith.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 123. Inspections relative to apparatus for emery and buffing machinery; complaint; prosecution Section 123. Inspectors, upon receipt of a notice signed by any person having knowledge of the facts that any factory or workshop subject to sections one hundred and nineteen and one hundred and twenty is not provided with the apparatus prescribed thereby, shall visit and inspect such factory or workshop, and for that purpose may enter therein during working hours; and if they ascertain that the owner, proprietor or manager thereof has failed to comply with said sections, they shall make complaint to a court or trial justice having jurisdiction, and cause such owner, proprietor or manager to be prosecuted.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 124. Communication between engineer’s room and machinery room Section 124. In every manufacturing establishment where the machinery is operated by steam, communication shall be provided between each room where such machinery is placed and the room where the engineer is stationed by means of speaking tubes, electric bells or appliances to control the motive power, or such other means as shall be satisfactory to an inspector, if in his opinion such communication is necessary.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 125. Violation of statute relating to communication Section 125. An occupant or manager of a manufacturing establishment who violates the preceding section shall forfeit to the commonwealth not less than one hundred nor more than five hundred dollars. No prosecution for such violation shall be begun unless a person has for four weeks after the receipt of a written order from an inspector neglected to comply therewith.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 126. Fastening doors during business hours; violation of statute Section 126. No inside or outside door of any building subject to the supervision of the attorney general which, under the provisions of the state building code, is required as a means of free egress or escape from fire, and no inside or outside door of any industrial establishment in which ten or more persons are employed which is marked “exit” or in any other manner designating the same as a means of egress or escape from fire shall, during business hours, be so locked, bolted or fastened that such door cannot be opened from the inside by the use of the ordinary door knob, or by pressure on the door or on a panic release device, so called. No inside or outside door of any other building, other than a dwelling house, wherein any person is employed, which door shall have been determined by the department of fire services, upon the written request of the attorney general, to be a means of such egress and escape shall, during business hours, be locked, bolted or fastened as aforesaid or obstructed in any manner which would not permit free egress. The owner, lessor or lessee, or any other person in charge, of a building or portion thereof any door of which shall be found locked, bolted or otherwise fastened or obstructed in any manner which would not permit free egress, contrary to any provision of this section shall be punished by a fine of not less than five hundred nor more than three thousand dollars or by imprisonment for not more than one year, or both.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 127. Guards for, and cleaning of, machinery; disconnection and removal of safety devices Section 127. The belting, shafting, gearing, drums and all machinery having movable parts in all factories, workshops, mechanical and mercantile establishments, if so placed as to be dangerous to employees while engaged in their ordinary duties, shall be securely guarded so far as practicable. Guards, dogs or other safety devices installed on belting, shafting, gearing, drums and all machinery having movable parts shall not be disconnected or removed, except when such belting, shafting, gearing, drums and all machinery having movable parts has been shut down for repairs. No machinery except steam engines in a factory, workshop, mechanical or mercantile establishment shall be cleaned while running.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 128. Traversing carriage of a self-acting mule traveling close to fixed structure Section 128. The owner of a cotton factory erected after May twenty-eighth, eighteen hundred and ninety-six, in which there is any traversing carriage of a self-acting mule installed, or of any cotton factory erected previously to such date in which thereafter such traversing carriage is installed, who permits such carriage to travel within twelve inches of any pillar, column, pier or fixed structure, shall be punished by a fine of not less than twenty nor more than fifty dollars.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 129. Safeguards for hoistways, hatchways and well holes; closing trapdoors Section 129. The openings of hoistways, hatchways and well holes upon every floor of an industrial establishment shall be protected by sufficient trap doors or self-closing hatches, or by such other safeguards as an inspector directs; and any such openings shall be kept so protected or so safeguarded at all times, except when in actual use, by the occupant of the building having the use and control of the same, or by the owner of the building having such control.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 129A. Shoring trenches for local governments; graves excepted Section 129A. On any construction project carried on by any city, town, county or other subdivision of the commonwealth in which a trench is to be dug to a depth of five feet or more, except a trench for laying of water pipes dug to a depth of six and one-half feet which will be open less than forty-eight hours, such trench shall be shored and braced in conformity with the rules and regulations for the prevention of accidents in construction operations, as adopted and enforced by the attorney general. This section shall not apply to the digging of graves.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 129B. Stilts; penalty for requiring or knowingly permitting use in construction Section 129B. Whoever, being engaged in construction work, requires or knowingly permits any person employed by him in such work to use certain devices, commonly called stilts, designed to be attached to the feet or legs of such employee for the purpose of elevating him to high placed or positioned work, shall be punished by a fine of not more than five hundred dollars for the first offense, by a fine of not more than three thousand dollars for the second offense, and by a fine of not more than five thousand dollars for any subsequent offense.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 129C. Installation or repair of live electric wires or electrical equipment; assistance; safety equipment; penalty Section 129C. Whoever being engaged in the business of transmitting electricity or installing or repairing live wires or electrical equipment knowingly permits a journeyman or first class lineman, while on a pole or structure, to work on live wires in excess of seven hundred and fifty volts to ground unless he is assisted on or at the base of each such pole or structure by a journeyman lineman, a fourth-year apprentice, a second class lineman or a lineman having a title commonly accepted as the equivalent of the foregoing shall be punished by a fine of not more than five hundred dollars. Whoever being engaged in the business of transmitting or distributing electricity or installing or repairing live wires or electrical equipment knowingly permits any of its personnel to work on live wires, electrical equipment or any other energized conductor in excess of fifteen thousand volts phase-to-phase or eight thousand five hundred volts phase-to-ground directly with rubber gloves or in any manner other than with insulated hot line tools in which case the worker shall maintain as a minimum clearance from such wire, equipment or conductor a distance consistent with the minimum requirements of the occupational safety and health act, so-called, shall be punished by a fine of not more than five hundred dollars.
Each violation of this section shall be a separate offense.
For the purpose of this section, a structure shall be deemed to include any type of aerial lift device, including a so-called bucket truck. This section shall not apply to work done by any person who is commonly called a troubleman, while making emergency repairs, locating electrical faults, clearing defective apparatus, or answering service calls.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 129D. Riding in man-basket carried by hoisting machinery for bungee jumping or other safety approved activity Section 129D. No person shall be prohibited from riding in a department of public safety approved man-basket, so-called, carried by any hoisting machinery for the purpose of bungee jumping or for any other department of public safety approved activity.
Chapter 149: Section 13. Violations of regulations or orders Section 13. No person shall violate any reasonable rule, regulation, order or requirement made by the department under section six or eleven.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 130. Explosives or inflammable materials; storage and use near egress Section 130. Explosive or inflammable compounds or materials shall not be so stored or used in any place of employment as to obstruct or render hazardous the egress of employees in case of fire.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 131. Guards for loom shuttles; violation of statute Section 131. Any person owning, managing or operating a factory where looms are used shall equip them with such guards or other devices as will prevent injury to employees from shuttles falling or being thrown from the looms. Such guards or devices shall be made of such material and be placed in such manner as shall be approved by the department. Whoever violates this section shall be punished by a fine of not more than one hundred dollars for every week during which the violation continues.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 132. Suction shuttles; shuttle or thread touching lips; violation of statute Section 132. No proprietor of a factory nor any officer or agent or other person shall require or permit the use of suction shuttles, or any form of shuttle in the use of which any part of the shuttle or any thread is put in the mouth or touched by the lips of the operator. Whoever violates this section shall be punished by a fine of not less than fifty dollars.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 133. Water closets, toilets and washing facilities; regulations; definitions of “industrial establishments” and “railroad establishments” Section 133. In every industrial establishment and railroad establishment there shall be provided suitable, adequate and convenient water closets and washing facilities, separate for each sex and plainly so designated, of such number, in such location, and so constructed, lighted, ventilated, arranged and maintained as may be determined by such reasonable rules and regulations as the department may adopt. No person shall be allowed to use a closet or privy provided for the use of persons of the opposite sex. If any such establishment is so located that a connection with a sewer system is, in the opinion of the department, impossible or impracticable, it shall provide such suitable toilet and washing facilities as the department may require. For the purposes of this section the term “industrial establishment” shall be deemed to include public garages and premises used by express, trucking and transportation companies where persons are employed. For the purposes of this section the term “railroad establishment” shall be deemed to mean that part, division or branch of any railroad in which three or more persons are employed except where toilet and washing facilities are maintained for public use.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 134. Necessary changes; action for proportion of expense Section 134. The owner, lessee or occupant of every such establishment shall make the changes necessary to conform thereto. If such changes are made upon the order of an inspector by the occupant or lessee, he may, within thirty days after completion, bring an action against any other person having an interest in such premises, and may recover such proportion of the expense of making such changes as the court adjudges should justly and equitably be borne by the defendant.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 135. Prosecutions; necessity of neglect to make changes; notice; liability of corporate officer Section 135. A criminal prosecution shall not be begun against a person for a violation of any provision of sections one hundred and thirty-three or one hundred and thirty-four unless he has, after receiving notice from the attorney general of the changes necessary to comply with said sections, neglected to make such changes. A notice shall be sufficient under this section if given to one member of a firm, or to the clerk, cashier, secretary, agent or any other officer having charge of the business of a corporation, or to its attorney, or, in the case of a foreign corporation, to the officer or person having charge of any such industrial establishment or railroad establishment; and such officer or person shall be personally liable for the amount of any fine if a judgment against the corporation is unsatisfied.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 136. Violation of public health laws; notice to town board of health; enforcement Section 136. If it appears to an inspector that any act, neglect or fault in relation to any drain, water closet, earth closet, privy, ash pit, water supply, nuisance or other matter in any industrial establishment is punishable or remediable under any law relative to the preservation of the public health, but not under this chapter, he shall give written notice thereof to the board of health of the town where such establishment is situated, and such board of health shall thereupon inquire into the subject of the notice and enforce the laws relative thereto.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 137. Foundry toilet rooms and water closets; failure to comply with statute Section 137. The proprietor of every foundry engaged in the casting of iron, brass, steel or other metal, and employing ten or more persons, shall establish and maintain, except in towns where it would be impracticable by reason of the absence of public or private sewerage or of any running water system, a toilet room of suitable size and condition for such persons to change their clothes therein, and provided with wash bowls, sinks or other suitable set appliances connected with running hot and cold water, and also a water closet connected with running water and separated from the said toilet room. The said water closet and toilet room shall be connected directly with the foundry building, properly heated, ventilated and protected, so far as may be reasonably practicable, from the dust of the foundry. Whoever fails to comply with this section after being requested so to do by an inspector shall be punished by a fine of not more than fifty dollars.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 138. Injuring toilet appliances Section 138. Whoever wilfully destroys, defaces, injures or defiles any toilet appliances provided in any place of employment shall be punished by a fine of not more than fifty dollars.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 139. Lockers and clothes receptacles of employees; violation of statute Section 139. In any mercantile or manufacturing establishment or hotel or railroad where the nature of the work renders it necessary for any or all employees, before beginning work, to make a substantially complete change of clothing, exclusive of underclothing, separate lockers, closets or other receptacles, each with a lock and key, shall be provided for the use of such employees. Whoever violates this section shall be punished by a fine of not less than five nor more than twenty dollars.
Chapter 149: Section 14. Annual reports of commissioner Section 14. The commissioner shall make an annual report, including the reports required by sections one hundred and sixty and one hundred and seventy of this chapter, section ten of chapter one hundred and fifty, section fifteen of chapter one hundred and fifty-one, and section fifty-seven of chapter ninety-eight. The commissioner shall also include in his report such data as to the work of the division on the necessaries of life as he may deem advisable.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 140. Repealed, 1953, 57 PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 141. Medical and surgical chests; accommodations for treatment of injured or ill persons; facilities for heating food; violation of statute Section 141. Every person operating a factory, shop or mechanical establishment where machinery is used for any manufacturing or other purpose except for elevators, or for heating or hoisting apparatus, shall keep and maintain, free of expense to the employees, such medical or surgical chest, or both, as shall be required by the department, containing plasters, bandages, absorbent cotton, gauze, and all other necessary medicines, instruments and appliances for the treatment of persons injured or taken ill upon the premises. Every such person employing one hundred or more persons shall, if so required by the department, provide accommodations satisfactory to it for the treatment of persons injured or taken ill upon the premises, and also suitable and sanitary facilities for heating or warming food to be consumed by those employees of the factory, shop or mechanical establishment who so desire. Every person carrying on a mercantile establishment where twenty or more persons are employed shall in the manner aforesaid provide such medical and surgical chest as the department may require. Whoever violates any provision hereof shall be punished by a fine of not less than five nor more than five hundred dollars for every week during which such violation continues.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 141A. Lifting heavy objects in textile factories Section 141A. No person or persons employed in a textile factory, whose principal employment is the tending or repairing of machinery, shall be required to lift by hand, as a regular part of his or their duties, any object or objects the combined weight of which totals more than three hundred and twenty-five pounds.
PROVISIONS AS TO HEALTH AND SAFETY Chapter 149: Section 142. Sanitary material for cleaning printing presses Section 142. All publishers and printers shall use a sanitary cloth or other sanitary material in cleaning their presses.
BENZOL AND MIXTURES CONTAINING BENZOL Chapter 149: Section 142A. Marked receptacles for substances hazardous to health Section 142A. No person shall keep for sale, sell, transport or store, and no person shall have for use in any manufacturing, mechanical or mercantile establishment, or in any other place of employment, benzene represented by the chemical formula C/6H/6, in sections one hundred and forty-two B to one hundred and forty-two F, inclusive, called benzol, carbon tetrachloride or other substance which, in the opinion of the departments of labor and workforce development and of public health, acting jointly, is so hazardous to health as to warrant regulation, in any receptacle other than part of a vehicle used exclusively for outdoor transportation, unless such receptacle is marked with the words “Benzol”, “Carbon Tetrachloride” or “Name of Substance”, together with such warning as the director of labor and workforce development and the commissioner of public health jointly by reasonable rules and regulations may require.
BENZOL AND MIXTURES CONTAINING BENZOL Chapter 149: Section 142B. Marked receptacles for materials containing substances hazardous to health Section 142B. No person shall keep for sale, sell, transport or store, and no person shall have for use in any manufacturing, mechanical or mercantile establishment, or any other place of employment, any material containing benzol, carbon tetrachloride or other substance which, in the opinion of the department of labor and workforce development and the department of public health, acting jointly, is so hazardous to health as to warrant regulation, in any receptacle other than part of a vehicle used exclusively for outdoor transportation, unless such receptacle is marked with one of the following combinations of words:— “Contains benzol”, “Contains carbon tetrachloride” or “Contains (name of substance)”, together with such warning as the director of labor and workforce development and the commissioner of public health jointly by reasonable rules and regulations may require.
BENZOL AND MIXTURES CONTAINING BENZOL Chapter 149: Section 142C. Markings; clear and conspicuous; size; place Section 142C. The words and any warning required by sections one hundred and forty-two A and one hundred and forty-two B shall be clear and conspicuous, and shall be of such size and so placed as the director of labor and workforce development and the commissioner of public health jointly by reasonable rules and regulations may require.
BENZOL AND MIXTURES CONTAINING BENZOL Chapter 149: Section 142D. Receptacles exempt from marking requirements Section 142D. The director of labor and workforce development and the commissioner of public health acting jointly may, by reasonable rules and regulations, exempt from the provisions of sections one hundred and forty-two A and one hundred and forty-two B, under such restrictions as they may deem advisable, (a) closed receptacles which are in the possession of the manufacturer by whom the contents of such receptacles were made or compounded or of a common carrier, provided in each case said director and commissioner are satisfied that such contents are to be used only outside the commonwealth; (b) receptacles containing material used exclusively as motor fuel; (c) receptacles containing material which, as last compounded, contained a per cent by weight of benzol, carbon tetrachloride or other substance which said director and commissioner determine to be not so hazardous to health as to warrant regulation.
BENZOL AND MIXTURES CONTAINING BENZOL Chapter 149: Section 142E. Reports concerning material hazardous to health Section 142E. For the protection of persons exposed to possible injury by any material or substance which in the joint opinion of the departments of labor and workforce development and of public health, acting pursuant to sections one hundred and forty-two A and one hundred and forty-two B, is so hazardous to health as to warrant regulation, the director of labor and workforce development and the commissioner of public health, acting jointly, may by reasonable rules and regulations require such reports as they may deem advisable covering the manufacture, sale, receipt, possession or use of any such material or substance.
BENZOL AND MIXTURES CONTAINING BENZOL Chapter 149: Section 142F. Violation of statutes and regulations; failure to mark receptacles; removal or defacement of marks Section 142F. Whoever violates any provision of section one hundred and forty-two A, one hundred and forty-two B or one hundred and forty-two C, or any rule or regulation made under section one hundred and forty-two A, one hundred and forty-two B, one hundred and forty-two C, one hundred and forty-two D and one hundred and forty-two E, and whoever, being charged with the duty of marking any receptacle containing benzol, carbon tetrachloride or other substance which, in the joint opinion of the departments of labor and workforce development and of public health, is so hazardous to health as to warrant regulation, or any material in which benzol, carbon tetrachloride or other substance which, in the opinion of said departments, acting jointly, is so hazardous to health as to warrant regulation, is contained, fails so to mark the same, and whoever wilfully removes or defaces any marking made in accordance with any of said provisions or rules and regulations shall be punished by a fine of not more than one thousand dollars.
BENZOL AND MIXTURES CONTAINING BENZOL Chapter 149: Section 142G. Enforcement of statutes and regulations Section 142G. The attorney general shall enforce the provisions of sections one hundred and forty-two A to one hundred and forty-two F, inclusive, and the rules and regulations made hereunder in any manufacturing or mechanical establishment or in any other place of employment in so far as the same relate to the health of employees, and the department of public health shall enforce the provisions of said sections and the rules and regulations made hereunder in so far as they apply to the keeping and storage for sale to the public in any mercantile establishment of any of the substances or materials referred to in said sections.
INDUSTRIAL HOMEWORK Chapter 149: Section 143. Definitions Section 143. The following words, as used in this section and in sections one hundred and forty-three A and one hundred and forty-four to one hundred and forty-seven H, inclusive, unless the context otherwise requires, shall have the following meanings:—“Employer”, any person who, directly or indirectly, or through an employee or agent, furnishes to another person any materials or articles to be manufactured or worked upon in a home, and thereafter to be returned to himself or on his order, for use other than the personal use of himself or of a member of his family.
“Home”, any room, house, apartment or other premises, whichever is most extensive, used in whole or in part as a place of dwelling.
“Industrial homework”, any manufacture of or work upon materials or articles in a home for an employer, exclusive of domestic service.
The verb “to manufacture”, as used in its different moods and tenses, includes to prepare, alter, repair or finish in whole or in part.
INDUSTRIAL HOMEWORK Chapter 149: Section 143A. Protection from undue competition and of health and well-being of workers Section 143A. Protection of factory industries from undue competition and protection of the health and well-being of the workers is a matter which concerns the general welfare of the public. Remedy for this evil has been sought through the enactment of laws to protect health and to raise living standards for workers engaged in industrial homework.
INDUSTRIAL HOMEWORK Chapter 149: Section 144. Unlawful industrial homework Section 144. The manufacture of or work upon any of the following by industrial homework shall be unlawful, and no permit issued under section one hundred and forty-seven or certificate issued under section one hundred and forty-seven A shall be deemed to authorize such manufacture or work upon or the delivery of materials for such manufacture: tobacco; drugs and poisons; bandages and other sanitary goods; explosives, fireworks and articles of like character; outergarments and undergarments of men, women, boys, girls, children and infants, except hosiery and women’s millinery; articles, the manufacture of or work upon which by industrial homework is determined by the commissioner, after investigation and hearing in the manner provided by sections one hundred and forty-five and one hundred and forty-six to be injurious to the health or welfare of the industrial homeworkers within the industry or to render unduly difficult the maintenance of existing labor standards or the enforcement of labor standards established by law or regulation for workers in the industry.
INDUSTRIAL HOMEWORK Chapter 149: Section 145. Investigation of industries; order declaring industrial homework unlawful Section 145. The attorney general may make or cause to be made an investigation of any industry which employs industrial homeworkers, in order to determine whether the wages and conditions of employment of industrial homeworkers in such industry are injurious to their health and welfare, or whether the wages and conditions of employment of such industrial homeworkers have the effect of rendering unduly difficult the maintenance of existing labor standards or the enforcement of labor standards established by law or regulation for workers in the industry. If, on the basis of information in his possession, with or without an investigation as provided in this section, the attorney general shall find that industrial homework cannot be continued within a certain industry without injuring the health and welfare of the industrial homeworkers within such industry, or without rendering unduly difficult the maintenance of existing labor standards or the enforcement of labor standards established by law or regulation for workers in such industry, the attorney general shall by order declare such industrial homework unlawful and require all employers in such industry to discontinue the furnishing within the commonwealth of material for industrial homework, and no permit issued under section one hundred and forty-seven shall be deemed thereafter to authorize the furnishing of materials for industrial homework prohibited by such order.
INDUSTRIAL HOMEWORK Chapter 149: Section 146. Hearing preceding order; notice; place; effective date of order Section 146. Before making such order the attorney general shall hold a public hearing or hearings at which an opportunity to be heard shall be afforded to any employer, or representative of employers, and any industrial homeworker, or representative of industrial homeworkers, and any other person or persons, having an interest in the subject matter of the hearing. At least thirty days before any such hearing is held public notice thereof shall be given in such manner as may be determined by the attorney general. Such hearing or hearings shall be held in such place or places as the attorney general shall deem most convenient to the employers and industrial homeworkers to be affected by such order. The attorney general shall determine the effective date of such order, which date shall be not less than ninety days after the date of its promulgation.
INDUSTRIAL HOMEWORK Chapter 149: Section 146A. Distribution of materials and articles; necessity of place of employment in commonwealth Section 146A. The employer shall, wherever industrial homework is permitted, distribute directly to his homeworkers all material and articles of homework. No employer shall give out any material or articles for homework through any homework contractors or distributors. No person other than an employer shall distribute to anyone any materials or articles for industrial homework.
Industrial homework shall be performed only if the employer maintains a plant or factory in this commonwealth or maintains a place of employment in this commonwealth other than a home.
INDUSTRIAL HOMEWORK Chapter 149: Section 147. Employer’s permit; person to whom materials or articles may be delivered; effect of strike; payment of fees into treasury Section 147. No materials for manufacture or to be worked upon by industrial homework shall be delivered to any person in the commonwealth unless the employer so delivering them, or his agent if the employer is not a resident of or located within this commonwealth, has in his possession a valid permit issued by the attorney general under authority of this section, hereinafter and in sections one hundred and forty-seven A to one hundred and forty-seven H, inclusive, called an employer’s permit. Such permit shall be issued by the attorney general, may be renewed annually by him, and, subject to the last sentence of section one hundred and forty-five, shall be valid for a period of one year from the date of its issuance, unless sooner revoked or suspended. Application for such permit shall be made in such form as the attorney general may from time to time by rule or regulation prescribe. No employer shall deliver or cause to be delivered any materials or articles for manufacture or to be worked upon by industrial homework to a person who is not in possession of a valid employer’s permit, or a homeworker’s certificate issued in accordance with this or the following section. The attorney general may revoke or suspend an employer’s permit if he finds that the employer has violated any provision of sections one hundred and forty-four to one hundred and forty-seven H, inclusive, or has failed to observe or comply with any provision of his permit or has violated any rule or regulation adopted for control of industrial homework. No original permit shall be granted by the attorney general to any employer at whose plant there is a strike, and any permit so issued shall be revoked or suspended, unless the attorney general finds such strike to be unlawful under the provisions of paragraph (e) of section twenty C.
The attorney general shall collect a fee, as determined annually by the commissioner of administration under the provision of section three B of chapter seven, for the original issuance of an employer’s permit, and for each renewal of such permit plus an amount for each homeworker with whom the employer directly or indirectly had business relations during the preceding calendar year. Any such fees received by the attorney general shall be paid into the treasury to the credit of the General Fund.
INDUSTRIAL HOMEWORK Chapter 149: Section 147A. Homeworker’s certificate; place of work; work performed by others; qualifications of applicant and home; strike against employer Section 147A. No person shall engage in industrial homework within the commonwealth unless he has in his possession a valid certificate issued to him by the attorney general under authority of this section, hereinafter and in sections one hundred and forty-seven B to one hundred and forty-seven H, inclusive, called a homeworker’s certificate. Such certificate shall be issued by the attorney general without cost and shall be valid for a period of one year from the date of its issuance, unless sooner revoked or suspended. Application for such certificate shall be made in such form as the attorney general may from time to time by rule or regulation prescribe. Such certificate shall be valid only for work performed by the applicant himself in his own home. No homeworker’s certificate shall be issued to any person under the age of sixteen years, or to any person suffering from an infectious, contagious or communicable disease or living in a home that is not clean, sanitary and free from infectious, contagious or communicable disease. The attorney general may revoke or suspend any homeworker’s certificate if he finds that the holder thereof is performing industrial homework contrary to the conditions under which the certificate was issued or in violation of any pertinent provision of sections one hundred and forty-four to one hundred and forty-seven H, inclusive, or has permitted any person not holding a valid homeworker’s certificate to assist him in performing his industrial homework.
No original certificate shall be granted by the attorney general to any person for work to be done for an employer at whose plant there is a strike, and any certificate so issued shall be revoked or suspended, unless the attorney general finds such strike to be unlawful under the provisions of paragraph (e) of section twenty C.
INDUSTRIAL HOMEWORK Chapter 149: Section 147B. Employer’s name and address affixed to articles or container of goods delivered for homework Section 147B. No employer shall deliver or cause to be delivered to any person any materials or articles to be manufactured or worked upon by industrial homework unless there has been conspicuously affixed to each article or, if impossible so to affix, then to the package or other container in which such goods are delivered or are to be kept, a label or other mark of identification bearing the employer’s name and address, printed or written legibly in English.
INDUSTRIAL HOMEWORK Chapter 149: Section 147C. Work in violation of statutes; removal, retention and disposition of articles; notice Section 147C. Any article which is being manufactured or worked upon in a home in violation of any provision of sections one hundred and forty-four to one hundred and forty-seven H, inclusive, may be removed by the attorney general or his authorized representative and may be retained by him until claimed by the employer. The attorney general shall give notice, by registered mail, of such removal to the person whose name and address are affixed to the article, package or container as provided in section one hundred and forty-seven B. Unless the article so removed is claimed within thirty days following the giving of such notice, it may be destroyed or otherwise disposed of.
INDUSTRIAL HOMEWORK Chapter 149: Section 147D. Record of homeworkers and work Section 147D. No person in possession of an employer’s permit shall deliver or receive, or cause to be delivered or received, any articles for or as a result of industrial homework unless he shall keep in such form, and forward to the attorney general at such intervals as the attorney general may by rule or regulation prescribe and on such blanks as he may provide, a record of all persons engaged in industrial homework on materials furnished or distributed, or caused to be furnished or distributed, by such person, of all places where such persons work, of all articles which such persons have manufactured or worked upon, the hours worked, of the gross cash wages received by each industrial homeworker.
INDUSTRIAL HOMEWORK Chapter 149: Section 147E. Regulations; violations; inspections and investigations Section 147E. The attorney general shall make rules and regulations for the enforcement of sections one hundred and forty-four to one hundred and forty-seven H, inclusive, and to maintain existing wage, hour and other labor standards established by law or regulation for workers in the industry. Violation of any such rule or regulation shall be punished as provided in section one hundred and forty-seven G. The attorney general or his authorized representatives shall make all inspections and investigations necessary for the enforcement of said sections.
INDUSTRIAL HOMEWORK Chapter 149: Section 147F. Attendance of witnesses and production of books and papers; summons and court order; fees; oaths; depositions Section 147F. In making any investigation or examination under authority of any provision of sections one hundred and forty-four to one hundred and forty-seven H, inclusive, the attorney general or his duly authorized representative may require the attendance and testimony of witnesses and the production of books, papers, contracts and documents relating thereto. Witnesses shall be summoned in the same manner and shall be paid the same fees as witnesses before the superior court in civil cases. The attorney general or any such representative may administer oaths to witnesses or take their affirmation. If any person summoned and paid as a witness refuses to attend, or to be sworn or to affirm, or to answer any question, or to produce any book, contract, document or paper pertinent to the matter before the attorney general or such representative, a justice of the supreme judicial or the superior court, upon application by said attorney general or such representative, may issue an order requiring such person to appear before said attorney general or representative, and to produce his books, contracts, documents and papers and to give evidence relating to the matter in question. Upon application by the attorney general or such representative, commissions to take depositions of persons without the commonwealth may be issued by a justice of the supreme judicial or the superior court, to be used in hearings before the attorney general or such representative, and all laws and rules relating to such commissions in civil actions shall apply to commissions issued hereunder.
INDUSTRIAL HOMEWORK Chapter 149: Section 147G. Additional penalties Section 147G. In addition to any penalties otherwise prescribed in sections one hundred and forty-four to one hundred and forty-seven H, inclusive, any employer or his agent who, without having in his possession a valid employer’s permit, delivers or causes to be delivered to another person any materials for manufacture or to be worked upon by industrial homework, or who refuses to allow the attorney general or his authorized representative to enter his place of business for the purpose of making any investigation authorized by any provision of said sections one hundred and forty-four to one hundred and forty-seven H, inclusive, or necessary to carry out any provision thereof, or who refuses to permit the attorney general or his authorized representative to inspect or copy the pay roll or other records or documents relating to the enforcement of said sections, or who falsifies such records or documents or any statement which he is required by the attorney general or said representative, acting under authority of said sections, to make, or who otherwise violates any provision of said sections or any provision of his permit, shall be punished by a fine of not less than three hundred nor more than three thousand dollars, or by imprisonment for not more than two months, or both.
INDUSTRIAL HOMEWORK Chapter 149: Section 147H. Educational and philanthropic organizations; homework performed under supervision of commission for the blind Section 147H. The provisions of sections one hundred and forty-three to one hundred and forty-seven G, inclusive, shall not apply to organizations incorporated in the commonwealth for educational or philanthropic purposes, or to homework performed under the supervision of the Massachusetts commission for the blind. Persons doing work for such organizations shall not be required to have a certificate to permit them to do such work.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 148. Payment of wages; commissions; exemption by contract; persons deemed employers; provision for cashing check or draft; violation of statute Section 148. Every person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week, or to within seven days of the termination of the pay period during which the wages were earned if such employee is employed seven days in a calendar week, or in the case of an employee who has worked for a period of less than five days, hereinafter called a casual employee, shall, within seven days after the termination of such period, pay the wages earned by such casual employee during such period, but any employee leaving his employment shall be paid in full on the following regular pay day, and, in the absence of a regular pay day, on the following Saturday; and any employee discharged from such employment shall be paid in full on the day of his discharge, or in Boston as soon as the laws requiring pay rolls, bills and accounts to be certified shall have been complied with; and the commonwealth, its departments, officers, boards and commissions shall so pay every mechanic, workman and laborer employed by it or them, and every person employed in any other capacity by it or them in any penal or charitable institution, and every county and city shall so pay every employee engaged in its business the wages or salary earned by him, unless such mechanic, workman, laborer or employee requests in writing to be paid in a different manner; and every town shall so pay each employee engaged in its business if so required by him; but an employee absent from his regular place of labor at a time fixed for payment shall be paid thereafter on demand; provided, however, that the department of telecommunications and energy, after hearing, may authorize a railroad corporation or a parlor or sleeping car corporation to pay the wages of any of its employees less frequently than weekly, if such employees prefer less frequent payments, and if their interests and the interests of the public will not suffer thereby; and provided, further, that employees engaged in a bona fide executive, administrative or professional capacity as determined by the attorney general and employees whose salaries are regularly paid on a weekly basis or at a weekly rate for a work week of substantially the same number of hours from week to week may be paid bi-weekly or semi-monthly unless such employee elects at his own option to be paid monthly; and provided, further, that employees engaged in agricultural work may be paid their wages monthly; in either case, however, failure by a railroad corporation or a parlor or sleeping car corporation to pay its employees their wages as authorized by the said department, or by an employer of employees engaged in agricultural work to pay monthly the wages of his or her employees, shall be deemed a violation of this section; and provided, further, that an employer may make payment of wages prior to the time that they are required to be paid under the provisions of this section, and such wages together with any wages already earned and due under this section, if any, may be paid weekly, bi-weekly, or semi-monthly to a salaried employee, but in no event shall wages remain unpaid by an employer for more than six days from the termination of the pay period in which such wages were earned by the employee. For the purposes of this section the words salaried employee shall mean any employee whose remuneration is on a weekly, bi-weekly, semi-monthly, monthly or annual basis, even though deductions or increases may be made in a particular pay period. The word “wages” shall include any holiday or vacation payments due an employee under an oral or written agreement. An employer, when paying an employee his wage, shall furnish to such employee a suitable pay slip, check stub or envelope showing the name of the employer, the name of the employee, the day, month, year, number of hours worked, and hourly rate, and the amounts of deductions or increases made for the pay period.
Every railroad corporation shall furnish each employee with a statement accompanying each payment of wages listing current accrued total earnings and taxes and shall also furnish said employee with each such payment a listing of his daily wages and the method used to compute such wages.
This section shall apply, so far as apt, to the payment of commissions when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee, and commissions so determined and due such employees shall be subject to the provisions of section one hundred and fifty.
This section shall not apply to an employee of a hospital which is supported in part by contributions from the commonwealth or from any city or town, nor to an employee of an incorporated hospital which provides treatment to patients free of charge, or which is conducted as a public charity, unless such employee requests such hospital to pay him weekly. This section shall not apply to an employee of a co-operative association if he is a shareholder therein, unless he requests such association to pay him weekly, nor to casual employees as hereinbefore defined employed by the commonwealth or by any county, city or town.
No person shall by a special contract with an employee or by any other means exempt himself from this section or from section one hundred and fifty. The president and treasurer of a corporation and any officers or agents having the management of such corporation shall be deemed to be the employers of the employees of the corporation within the meaning of this section. Every public officer whose duty it is to pay money, approve, audit or verify pay rolls, or perform any other official act relative to payment of any public employees, shall be deemed to be an employer of such employees, and shall be responsible under this section for any failure to perform his official duty relative to the payment of their wages or salaries, unless he is prevented from performing the same through no fault on his part.
Any employer paying wages to an employee by check or draft shall provide for such employee such facilities for the cashing of such check or draft at a bank or elsewhere, without charge by deduction from the face amount thereof or otherwise, as shall be deemed by the attorney general to be reasonable. The state treasurer may in his discretion in writing exempt himself and any other public officer from the provisions of this paragraph.
An employer paying his employees on a weekly basis on July first, nineteen hundred and ninety-two shall, prior to paying said employees on a bi-weekly basis, provide each employee with written notice of such change at least ninety days in advance of the first such bi-weekly paycheck.
Whoever violates this section shall be punished or shall be subject to a civil citation or order as provided in section 27C.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 148A. Employees seeking rights under provisions of this chapter; discharge or discrimination; punishment Section 148A. No employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter.
Any employer who discharges or in any other manner discriminates against any employee because such employee has made a complaint to the attorney general or any other person, or assists the attorney general in any investigation under this chapter, or has instituted, or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceedings, shall have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 148B. Persons performing service not authorized under this chapter deemed employees; exception Section 148B. (a) For the purpose of this chapter and chapter 151, an individual performing any service, except as authorized under this chapter, shall be considered to be an employee under those chapters unless:—(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and(2) the service is performed outside the usual course of the business of the employer; and,(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
(b) The failure to withhold federal or state income taxes or to pay unemployment compensation contributions or workers compensation premiums with respect to an individual’s wages shall not be considered in making a determination under this section.
(c) An individual’s exercise of the option to secure workers’ compensation insurance with a carrier as a sole proprietor or partnership pursuant to subsection (4) of section 1 of chapter 152 shall not be considered in making a determination under this section.
(d) Whoever fails to properly classify an individual as an employee according to this section and in so doing fails to comply, in any respect, with chapter 149, or section 1, 1A, 1B, 2B, 15 or 19 of chapter 151, or chapter 62B, shall be punished and shall be subject to all of the criminal and civil remedies, including debarment, as provided in section 27C of this chapter. Whoever fails to properly classify an individual as an employee according to this section and in so doing violates chapter 152 shall be punished as provided in section 14 of said chapter 152 and shall be subject to all of the civil remedies, including debarment, provided in section 27C of this chapter. Any entity and the president and treasurer of a corporation and any officer or agent having the management of the corporation or entity shall be liable for violations of this section.
(e) Nothing in this section shall limit the availability of other remedies at law or in equity.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 149. Summons and warrant for violations of Sec. 148 Section 149. A justice or clerk of a district court, or a trial justice, may upon the application of any employee issue a summons to an employer to appear and show cause why a warrant should not issue against him for a violation of section one hundred and forty-eight. Upon the return of such summons and after a hearing the justice may issue a warrant upon the complaint of any such employee.
Chapter 149: Section 15. Inspection districts; assignment of inspectors Section 15. With the approval of the associate commissioners and the assistant commissioner, the commissioner may divide the commonwealth into inspection districts, and assign the necessary number of inspectors thereto.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 150. Complaint for violation of certain sections; defenses; payment after complaint; assignments; loan of wages to employer; civil action Section 150. The attorney general may make complaint or seek indictment against any person for a violation of section 148. On the trial no defence for failure to pay as required, other than the attachment of such wages by trustee process or a valid assignment thereof or a valid set-off against the same, or the absence of the employee from his regular place of labor at the time of payment, or an actual tender to such employee at the time of payment of the wages so earned by him, shall be valid. The defendant shall not set up as a defence a payment of wages after the bringing of the complaint. An assignment of future wages payable weekly under section one hundred and forty-eight shall not be valid if made to the person from whom such wages are to become due or to any person on his behalf, or if made or procured to be made to another person for the purpose of relieving the employer from the obligation to pay weekly. A loan made by an employee to his employer of wages which are payable weekly under section one hundred and forty-eight, whether made directly to the employer or to another person or persons on his behalf, shall not be valid as a defense on the trial of a complaint for failure to pay such wages weekly, unless such loan shall have been made with the approval of the attorney general.
Any employee claiming to be aggrieved by a violation of section 148, 148A, 148B, 150C, 152, 152A or 159C or section 19 of chapter 151 may, at the expiration of ninety days after the filing of a complaint with the attorney general, or sooner, if the attorney general assents in writing, and within three years of such violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief and any damages incurred, including treble damages for any loss of wages and other benefits. An employee so aggrieved and who prevails in such an action shall be entitled to an award of the costs of the litigation and reasonable attorney fees.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 150A. Notification of deductions Section 150A. Every person making a deduction from wages of any employee for social security, unemployment compensation benefits, pension, vacation or health and welfare funds, state taxes, federal taxes, dues check-off and credit unions and every person engaged in contracting or sub-contracting, highway or building construction projects or public works construction who is party to an agreement to make contributions for unemployment compensation benefits, pension, vacation or health and welfare funds, apprentice training programs, federal tax, state tax, dues check-off or contributions to a credit union for the benefit of any employee, or who is required to make such contributions to such funds or programs or payments directly to an employee under the provisions of section twenty-seven, and which contributions or payments are computed on an hourly, daily, weekly or monthly basis, shall furnish each such employee a suitable pay slip, check stub or envelope, notifying such employee of the amount of each such deduction or contribution at the time of the payment of wages from which such deduction is made and in the case of a contribution at the time when such contribution is made; provided, however, that a new employee shall be notified in writing at the time of the first payment of his wages about the nature of such deduction or contribution; and provided, further, that each such employee shall be notified in writing at the initial time of any new deduction or contribution from the wages about the nature of such deductions and contributions.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 150B. Fees or assessments other than those chargeable under union constitution and by-laws Section 150B. No labor union, or person acting in its behalf, shall require any person, as a condition of securing or continuing employment, to pay any fee or assessment other than such initiation fees, dues and assessments as are, by the constitution and by-laws of such union, chargeable upon members thereof. Any union or person violating any provision of this section shall be punished by a fine of not less than five hundred dollars.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 150C. Improper expenditure of withholdings or deductions from wages; penalties Section 150C. Any person having employees in his service who withholds or deducts wages from employees for the purpose of purchasing or contributing toward the purchase of a blanket or general policy of insurance pursuant to section one hundred and ten of chapter one hundred and seventy-five and who fails to purchase such coverage or keep such coverage in force shall be punished by one or any combination of the following: by imprisonment in a jail or house of correction for not more than six months, by a fine of not more than one thousand dollars, by being required to reimburse employees for any wages withheld or deducted that were not put toward the use for which they were withheld or deducted, or by being required to pay for all costs incurred by an employee that would have been paid for or reimbursed by insurance if such insurance coverage had been in force.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 151. Payment on pay day before close of working hours Section 151. Persons carrying on any manufacturing business employing one hundred or more persons shall, on the day chosen as pay day, pay such of their employees as are on that day working in the manufacturing establishment, before the close of the regular working hours.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 152. Deductions for coming late to work Section 152. There shall not be deducted from the wages of an employee in any factory, workshop, manufacturing, mechanical or mercantile establishment, or from the wages of a mechanic, workman or laborer, on account of the employee’s coming late to work, a sum in excess of the proportionate wage which would have been earned during the time actually lost. Whoever violates this or the preceding section shall be punished by a fine of not more than fifty dollars.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 152A. Service charges and tips; tip pools; penalties Section 152A. (a) As used in this section, the following words, unless a different meaning is required by the context or is specifically prescribed, shall have the following meanings:—“Wait staff employee”, a person, including a waiter, waitress, bus person, and counter staff, who: (1) serves beverages or prepared food directly to patrons, or who clears patrons’ tables; (2) works in a restaurant, banquet facility, or other place where prepared food or beverages are served; and (3) who has no managerial responsibility.
“Service employee”, a person who works in an occupation in which employees customarily receive tips or gratuities, and who provides service directly to customers or consumers, but who works in an occupation other than in food or beverage service, and who has no managerial responsibility.
“Service bartender”, a person who prepares alcoholic or nonalcoholic beverages for patrons to be served by another employee, such as a wait staff employee.
“Employer”, any person or entity having employees in its service, including an owner or officer of an establishment employing wait staff employees, service employees, or service bartenders, or any person whose primary responsibility is the management or supervision of wait staff employees, service employees, or service bartenders.
“Patron”, any person who is served by a wait staff employee or service employee at any place where such employees perform work, including, but not limited to, any restaurant, banquet facility or other place at which prepared food or beverage is served, or any person who pays a tip or service charge to any wait staff employee, service employee, or service bartender.
“Service charge”, a fee charged by an employer to a patron in lieu of a tip to any wait staff employee, service employee, or service bartender, including any fee designated as a service charge, tip, gratuity, or a fee that a patron or other consumer would reasonably expect to be given to a wait staff employee, service employee, or service bartender in lieu of, or in addition to, a tip.
“Tip”, a sum of money, including any amount designated by a credit card patron, a gift or a gratuity, given as an acknowledgment of any service performed by a wait staff employee, service employee, or service bartender.
(b) No employer or other person shall demand, request or accept from any wait staff employee, service employee, or service bartender any payment or deduction from a tip or service charge given to such wait staff employee, service employee, or service bartender by a patron. No such employer or other person shall retain or distribute in a manner inconsistent with this section any tip or service charge given directly to the employer or person.
(c) No employer or person shall cause, require or permit any wait staff employee, service employee, or service bartender to participate in a tip pool through which such employee remits any wage, tip or service charge, or any portion thereof, for distribution to any person who is not a wait staff employee, service employee, or service bartender. An employer may administer a valid tip pool and may keep a record of the amounts received for bookkeeping or tax reporting purposes.
(d) If an employer or person submits a bill, invoice or charge to a patron or other person that imposes a service charge or tip, the total proceeds of that service charge or tip shall be remitted only to the wait staff employees, service employees, or service bartenders in proportion to the service provided by those employees.
Nothing in this section shall prohibit an employer from imposing on a patron any house or administrative fee in addition to or instead of a service charge or tip, if the employer provides a designation or written description of that house or administrative fee, which informs the patron that the fee does not represent a tip or service charge for wait staff employees, service employees, or service bartenders.
(e) Any service charge or tip remitted by a patron or person to an employer shall be paid to the wait staff employee, service employee, or service bartender by the end of the same business day, and in no case later than the time set forth for timely payment of wages under section 148.
(f) Whoever violates this section shall be subject to all of the civil and criminal penalties and remedies set forth in section 27C. Any person or employer who violates this section shall make restitution for any tips accepted, distributed or retained in violation of this section, together with interest thereon at the rate of 12 per cent per annum. An employee claiming to be aggrieved by a violation of this section may proceed pursuant to the second paragraph of section 150. The attorney general or, under said section 150, an employee may bring an action under this section within 3 years of any violation of this section.
(g) No employer or person shall by a special contract with an employee or by any other means exempt itself from this section.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 153. Grading work of weavers; imperfections affecting wages; conditions precedent to fines Section 153. No system used by manufacturers for grading the work of a weaver shall affect or lessen the wages of the weaver except for imperfections in his own work; and in no case shall the wages of those engaged in weaving be affected by fines or otherwise unless the imperfections complained of are first exhibited and pointed out to the person whose wages are to be affected; and a fine shall not be imposed upon any person for imperfect weaving unless this section is first complied with and the amount of the fines is agreed upon by both parties.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 154. Employer’s fine upon weaver for imperfections; violations of statutes Section 154. No employer shall impose a fine upon an employee engaged at weaving for imperfections arising during the process of weaving. Whoever violates this or the preceding section shall for the first offence be punished by a fine of not more than one hundred dollars and for a subsequent offence by a fine of not more than three hundred dollars.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 155. Specifications as to work and wages for weavers, frame tenders, warpers, web drawers and operatives paid by the pound Section 155. The occupier or manager of every cotton factory shall supply to each person engaged as a weaver in said factory and paid by the piece, cut or yard a printed or written ticket with each warp which shall contain the following specifications as to the work to be done and wages paid: the number of cuts, the number of yards per cut or piece, the price per yard, cut or piece, the number of picks per inch and the number of reeds to the inch. Said occupier or manager shall also supply to each person engaged as a frame tender a specification of the number of roving and price per hank, and to each person engaged as a warper or web drawer a specification of the number of threads in the warp and the rate of compensation, and to each operative paid by the pound a specification of the price to be paid per pound; said specification shall be furnished in each case on a printed or written ticket within three days after said operative begins work.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 156. Specifications and tickets; posting and attaching; contents; pick clocks; excess of maximum lengths; violation of statute Section 156. The occupier or manager of every textile factory shall post in every room where any employees work by the job, in legible writing or printing, and in sufficient numbers to be easily accessible to such employees, specifications of the character of each kind of work to be done by them, and the rate of compensation. Such specifications in the case of weaving rooms shall state the intended and maximum length of a cut or piece, the count per inch of reed, and the number of picks per inch, width of loom, width of cloth woven in the loom, and the price per cut or piece, or per pound; or, if payment is made per pick or per yard, the price per pick or per yard; and each warp shall bear a designating ticket or mark of identification; and in factories operating the looms on a piece rate basis pick clocks shall be placed on each loom, other than a gang loom, so called, in operation on work other than carpet weaving, linen fire hose weaving or elastic web weaving, and each weaver shall be paid according to the number of picks registered on said clock. In roving or spinning rooms, the number of roving or yarn and the price per hank for each size machine shall be stated; and each machine shall bear a ticket stating the number of the roving or yarn made upon it. In spooling rooms the boxes shall bear a ticket stating the number of pounds the box contains and the price per pound. The maximum length of a cut or piece shall not exceed its intended length by more than three per cent; but if it appears that a variation in excess of the amount hereinbefore set forth has been caused in whole or in part by any weaver in the employ of any person charged with the violation of this section, it shall be deemed a sufficient defence to a prosecution. The said specifications shall also contain a detailed schedule of the method of computation of the price of cotton or silk or mixed cotton and silk weaving to be paid by the said occupier or manager, and no particular in the specifications shall be expressed by means of symbols, but every particular shall be sufficiently clear and complete to enable the operative to determine readily the price payable for the cut or piece. Violation of any provision of this section shall for the first offence be punished by a fine of one hundred dollars, for the second offence by a fine of two hundred dollars, and for a subsequent offence by a fine of five hundred dollars or by imprisonment for not more than one month, or both.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 157. Violation of Sec. 155; interference with inspectors Section 157. Violation of any provision of section one hundred and fifty-five shall for the first offence be punished by a fine of not less than twenty-five nor more than fifty dollars, and for a subsequent offence by a fine of not less than fifty nor more than one hundred dollars. Whoever interferes with an inspector in the discharge of his duties in connection with the two preceding sections shall be punished as provided in this section.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 157A. Employees paid by piece; tickets stating basis of remuneration; posting statement of amount of pay earned Section 157A. Every person operating a factory or workshop shall supply to each employee therein who is paid by the piece, either at the time when such employee starts work or before the particular job or unit of work assigned to him is completed, and in any event before the day on which the next pay roll is calculated, a printed or written ticket, stating the basis of remuneration for the particular operation to be performed by such employee, or, in lieu of supplying such ticket, shall post in such factory or workshop within forty-eight hours after any such employee has completed any particular job or unit of work a statement showing the amount of pay earned thereon by such employee in addition to any hourly, daily or weekly rate, or by such other method as may be approved by the department of labor and workforce development, to which he may be entitled therefor.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 158. Stopped machinery; deductions from wages; making up lost time; penalty Section 158. Deductions shall not be made from the wages of persons paid by the day or hour, and employed in the manufacturing or mechanical establishments, while machinery is stopped, if said persons are refused the privilege of leaving the mill while the damage to said machinery is being repaired; and if they are detained in their workrooms during such time they shall not be compelled to make up time lost by such stopping unless compensated therefor at their regular rates of wages. Whoever violates this section shall be punished by a fine of not more than twenty dollars.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 158A. Work without compensation Section 158A. Whoever requires or permits any person, as a condition of securing employment, to work in any factory, workshop, manufacturing, mechanical or mercantile establishment without monetary compensation shall be punished by a fine of not more than fifty dollars.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 159. Discharge of employee without notice Section 159. A person engaged in manufacturing who requires from his employees, under penalty or forfeiture of a part of the wages earned by them, a notice of intention to leave such employ shall be liable to a like forfeiture, if, without similar notice, he discharges an employee.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 159A. Repealed, 2004, 125, Sec. 14. WEEKLY PAYMENT OF WAGES Chapter 149: Section 159B. Reimbursement of expenses for medical examinations Section 159B. Any employer who requests or requires a person who is a present or prospective employee to undergo a medical examination by a physician designated by the employer, as a condition to securing or continuing in employment, shall reimburse said person for the medical expenses requested or required.
WEEKLY PAYMENT OF WAGES Chapter 149: Section 159C. Staffing agencies; work site employers; transportation services Section 159C. (a) For purposes of this section, the following words shall have the following meanings:—“Employee”, a person employed directly by a staffing agency to provide temporary or part-time employment services to a work site employer or a person for whom a staffing agency procures or arranges temporary or part-time employment with a work site employer. “Employee” includes persons under 18 years of age engaged in domestic service in the home of the employer or persons engaged in agricultural service.
“Employer”, an individual, company, corporation or partnership acting in the interest of an employer directly or indirectly.
“Employment”, a trade, occupation or branch of industry, any particular method or process used therein, and the service of any particular employer by an employee as defined in this section, which shall include, but not be limited to, private domestic service by persons under 18 years of age or service as a farm laborer, including all practices connected with agriculture, the tillage of the soil, the preparation and marketing of crops and the construction and maintenance of farm property and equipment, customarily performed by a farmer on a farm.
“Staffing agency”, an individual, company, corporation or partnership that procures or provides temporary or part-time employment to a person who then works under the supervision or direction of a work site employer.
“Work site employer”, an individual, company, corporation or partnership with which a staffing agency contracts or otherwise agrees to furnish persons for temporary or part-time employment.
(b) If a staffing agency or work site employer or a person acting directly or indirectly in either’s interest offers transportation services to an employee and charges a fee for such services, the staffing agency or work site employer shall charge such employee no more than the actual cost to transport such employee to or from the designated work site. The fee, if any, to cover the transportation service costs for each such employee shall not exceed 3 per cent of such employee’s total daily wages, and shall not reduce the employee’s total daily wages below the minimum wage earned for the day. If a staffing agency or work site employer or a person acting directly or indirectly in either’s interest requires the use of such transportation services, no fee may be charged.
(c) No staffing agency or work site employer or a person acting directly or indirectly in either’s interest may deduct the costs for transportation services from the wages of an employee without the express written authorization of the employee. A staffing agency or work site employer shall furnish to the employee a copy of the signed authorization in a language that the employee can understand.
(d) Whoever violates this section shall be punished or shall be subject to a civil citation or order as provided in section 27C.
Chapter 149: Section 16. Receipt of gift by inspector Section 16. An inspector who directly or indirectly receives a reward, gift or gratuity on account of his official services shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than three months, and shall also be discharged from office.
FREE EMPLOYMENT OFFICES Chapter 149: Section 160. Establishment and maintenance; annual reports Section 160. The department may establish and maintain in such cities as may be selected by it after investigation, with the approval of the governor and council, employment offices for the purpose of bringing together those seeking employment and those desiring to employ, and may maintain such offices now established. The commissioner shall make an annual report as to free employment offices.
FREE EMPLOYMENT OFFICES Chapter 149: Section 161. Superintendents and clerks; appointment; sign indicating location of office Section 161. The commissioner shall appoint for each of the offices provided for in the preceding section a superintendent who shall, under the direction of the commissioner, perform the duties hereinafter set forth or such as he may require. The commissioner may also appoint an assistant superintendent and such clerks as he may deem necessary for the proper conduct of the business of said employment offices. The location of each office established under the preceding section shall be plainly indicated by a proper sign.
FREE EMPLOYMENT OFFICES Chapter 149: Section 162. Superintendents; duties; applications; registration; aliens; agriculture labor; strikes Section 162. The superintendents of said employment offices shall receive applications from those seeking employment and from those desiring to employ, and shall register them in such manner as may be prescribed by the commissioner, and shall take such other action as the commissioner may deem best to promote the purposes of said offices. Said superintendents shall also receive applications from alien immigrants seeking employment in agricultural labor and from those desiring to employ immigrants in agricultural labor, and shall take such other action as the commissioner may deem best to promote a more general distribution of alien immigrants throughout the agricultural sections of the commonwealth. In directing applicants for employment to an employer in whose establishment a strike is in progress, the commissioner, superintendents or other departmental employees shall inform the applicant of the strike.
FREE EMPLOYMENT OFFICES Chapter 149: Section 163. Fees; violation Section 163. No fees shall in any case be taken from those seeking the benefits of said employment offices. Any superintendent or clerk who directly or indirectly charges or receives any fee in the performance of his duties shall be punished by a fine of not more than one hundred dollars or by imprisonment in jail for not more than one month, and shall be disqualified from holding further connection with said office.
FREE EMPLOYMENT OFFICES Chapter 149: Section 164. Preference to residents Section 164. In registering applications for employment and for employees wanted, preference shall be given to residents of the commonwealth.
FREE EMPLOYMENT OFFICES Chapter 149: Section 165. Reports exchanged among offices, supplied to public, posted Section 165. Each superintendent shall make to the commissioner such reports of applications for labor or employment and of other details of the work of his office as the commissioner may require. The commissioner shall cause reports showing the business of the several offices to be prepared at regular intervals and to be exchanged among the said offices, and shall supply them to the newspapers and to citizens upon request; and the several superintendents shall post such reports in a conspicuous place in their offices so that they may be open to public inspection.
FREE EMPLOYMENT OFFICES Chapter 149: Section 166. Payment of salaries and expenses; appropriation Section 166. There shall be allowed and paid, upon the approval of the commissioner, for salaries and for contingent expenses in connection with the establishment and maintenance of free employment offices, such sum as the general court may annually appropriate therefor.
FREE EMPLOYMENT OFFICES Chapter 149: Section 167. Bulletins for town clerks showing demand for employment Section 167. The commissioner may furnish weekly to the clerks of all towns in the commonwealth printed bulletins showing the demand for employment, classified by occupations to such extent as may be practicable and indicating the town where the employees are wanted. Such information shall be based upon the applications for employees under this chapter.
FREE EMPLOYMENT OFFICES Chapter 149: Section 168. Posting bulletins; failure to comply Section 168. Every town clerk shall post the lists received as aforesaid in one or more conspicuous places in the town. A town clerk who fails to comply with this section shall be punished by a fine of not more than ten dollars.
FREE EMPLOYMENT OFFICES Chapter 149: Section 168A. Farm labor contracts; notice to department Section 168A. Any employer who enters into a farm labor contract with a farm labor contractor for the hire of agricultural and farm workers shall require that said contractor exhibit his certificate of registration issued pursuant to the Farm Labor Registration Act of 1963, 7 U.
S.
C. sections 2041—2053, prior to entering into any such contract, and shall thereafter notify the department in writing of the execution of the contract, giving the name of the contractor, the number of the certificate, if any, and other data necessary to identify said certificate of registration.
If a worker is not an employee of the farm or farmer and remains on the labor contractor’s payroll, each labor contractor shall give to each worker with each payment of wages an itemized statement of his wages and deductions and shall submit to the department of labor and workforce development a copy of his payroll record, on a form prescribed by the commissioner and mailed within forty-eight hours after the close of the weekly pay period.
Said record shall include but not be limited to the following: pay rate, hours worked, incentives, deductions for social security, transportation, housing, food, advances and net pay for the period. The department shall audit the return upon receipt according to departmental procedures.
A farm labor contractor shall file within forty-eight hours with the commissioner any change of his permanent address.
STATISTICS OF LABOR AND MANUFACTURES Chapter 149: Section 169 to 172. Repealed, 1981, 351, Sec. 250 Chapter 149: Section 17. Entry of places of employment for examinations and investigations; access to records Section 17. For the enforcement of the provisions of this chapter, the commissioner, the assistant commissioner and the associate commissioners, and the director, inspectors, and other representatives of the division of occupational safety may enter places of employment, other than places of employment of persons engaged in domestic service in the home of the employer, and examine the methods of protection from accident, the means of escape from fire, the sanitary provisions, the lighting and means of ventilation, and make investigations as to the employment of minors and as to compliance with all provisions of this chapter, and shall have access to all records pertaining to wages, hours, and other conditions of employment which are found essential to such investigations.
STATISTICS OF LABOR AND MANUFACTURES Chapter 149: Section 173. Destruction or sale of records and papers Section 173. The commissioner, having first obtained authority from the governor and council, may destroy or sell all such records, papers and schedules accumulated in the department as in his judgment are of no value.
COMMISSION ON FOREIGN AND DOMESTIC COMMERCE Chapter 149: Section 174. Repealed, 1929, 357, Sec. 2 MISCELLANEOUS PROVISIONS Chapter 149: Section 175. Bells, whistles and gongs Section 175. Manufacturers and others employing workmen may, for the purpose of giving notice to them, ring bells and use whistles and gongs of such size and weight and in such manner and at such hours as the aldermen or selectmen may designate in writing.
MISCELLANEOUS PROVISIONS Chapter 149: Section 176. Non-resident as special police officer Section 176. If, in an emergency, special police officers are appointed, under the name of police officers or any other name, to act as police officers for quelling a riot or disturbance or for protecting property, no non-resident of the commonwealth shall be so appointed unless he is a regular employee of the person whose property he is so appointed to protect.
MISCELLANEOUS PROVISIONS Chapter 149: Section 177. Police assistance in protecting property; non-residents assisting with arms; liability in damages Section 177. A person may, if his property is in danger, call upon the regular police authorities in the commonwealth for assistance in its protection, and this and the preceding section shall not limit or diminish such right; but no person shall request or authorize any person or body of persons not residents of the commonwealth, except regular employees, to assist such person with arms in the defence of his property, and no such request or authority shall justify an assault or attack with arms by a non-resident. Whoever, being an employer of labor, requests or authorizes assistance in violation of this section, and whoever renders such assistance with arms, shall be severally liable in damages to each person injured in person or property thereby.
MISCELLANEOUS PROVISIONS Chapter 149: Section 177A. Contract exempting employer from liability to employee Section 177A. No person shall, by a special contract with his employees, exempt himself from liability which he may be under to them for injuries suffered by them in their employment and resulting from the negligence of the employer or of a person in his employ.
MISCELLANEOUS PROVISIONS Chapter 149: Section 177B. Volunteer firefighters; responding to emergencies; discharge from other employment Section 177B. No employer shall discharge or take any other disciplinary action against any employee by reason of failure of such employee to report for work at the commencement of his regular working hours where such failure is due to his responding to an emergency in his capacity as a volunteer member of a fire department; provided, however, that no such employer shall be required to compensate any such employee for any period of his normal working hours during which for such reason he fails to report for work and at the request of an employer shall submit a statement signed by the chief of such fire department certifying the date and time such employee responded to and returned from such emergency. Such employee shall inform his employer or immediate supervisor of the reasons for such failure.
As used in this section, “responding to an emergency” shall mean responding to, working at the scene of, or returning from a fire or a call of fire in the good faith belief that such action is necessary to prevent the imminent loss of life or property, where either such fire or such call of fire occurs during a period other than the normal working hours of the employee. As used in this section, “volunteer member” shall mean a volunteer, call, reserve, or permanent-intermittent firefighter, but shall not include any person who received compensation for over nine hundred and seventy-five hours of services rendered in such capacity over the preceding six month period.
Any employee who is terminated or against whom any disciplinary action is taken in violation of the provisions of this section shall be immediately reinstated to his former position without reduction of pay, seniority or other benefits, and shall receive any lost pay or other benefits during any period for which such termination or other disciplinary action was in effect. An action to enforce the provisions of this section shall be commenced within one year of the date of the alleged violation, in the superior court within any county wherein the action occurred or wherein the employer resides or transacts business.
MISCELLANEOUS PROVISIONS Chapter 149: Section 178. Leave of absence from work for voting Section 178. No owner, superintendent or overseer in any manufacturing, mechanical or mercantile establishment shall employ or permit to be employed therein any person entitled to vote at an election, during the period of two hours after the opening of the polls in the voting precinct, ward or town in which such person is entitled to vote, if he shall make application for leave of absence during such period.
MISCELLANEOUS PROVISIONS Chapter 149: Section 178A. Payment of wages of intestate employee; officer or employee of commonwealth or subdivision Section 178A. Wages or salary not in excess of one hundred dollars, due an employee who dies intestate, may be paid by the employer if thirty days have elapsed since the death of the employee and neither a duly appointed executor or administrator nor a voluntary administrator has made written demand upon the employer for payment and the employer shall not otherwise have actual notice that proceedings relative to the formal or informal settlement of the estate of the employee have been commenced in any probate court, to the surviving husband or wife, or to an adult child of the deceased, or, if the employer is satisfied that there is no surviving husband or wife or adult child, to the surviving father or mother of such employee. Such payment shall be a full discharge of all obligations of the employer in respect to such wages or salary. The term “employee”, as used in this section, shall not be construed to include an officer or employee of the commonwealth or of any political subdivision thereof.
MISCELLANEOUS PROVISIONS Chapter 149: Section 178B. Deductions from salary for certain financial institutions; credit union bonds; withdrawal of authorization by employee; attachment or execution; pension money paid to credit unions; authorization Section 178B. The state treasurer, the treasurer of any county, the treasurer of any state institution and the treasurer of any city or town having a by-law or ordinance or collective bargaining agreement so requiring shall, and unless contrary to a by-law or ordinance the treasurer of any other city or town or of any district may, deduct from each payment of salary to any employee of the commonwealth or of any such county, city, town or district such amount or amounts as such employee in a written authorization to such treasurer may specify for purchasing shares of, or making deposits in, or repaying any loan from any credit union operated by employees of the commonwealth or of any such county, city, town or district or by members of a state association of teachers or any savings or cooperative bank, trust company, or credit union incorporated in or chartered by the commonwealth; or any national banking association, federal savings and loan association or federal credit union located in the commonwealth; or any banking company or Morris Plan Company subject to chapter one hundred and seventy-two A, or any savings and loan association under the supervision of the commissioner of banks. Any such authorization may be withdrawn by the employee by giving at least thirty days notice in writing of such withdrawal to the state, county, municipal or district treasurer, or the treasurer of the state or county department or institution and by filing a copy with the treasurer of said credit union. Any treasurer making deductions under this section shall transmit the amounts so deducted to the treasurer of such credit union or to the appropriate officer of any other such bank or association for the purposes specified by the employee; provided, in the case of such a union, that he is satisfied by such evidence as he may require that the treasurer of the credit union has given bond as required by the law for the faithful performance of his duties. The treasurer of any city, town or district shall transmit the amounts so deducted to the credit union operated by members of a state association of teachers within fourteen days of the deduction. Moneys so deducted shall not be attached or taken upon execution or other process while in the custody of the treasurer making the deduction.
The state treasurer shall deduct from each payment of pension to any retiree of the commonwealth such amount or amounts as such retiree in a written authorization to the state treasurer may specify for purchasing shares of, or making deposits in, or repaying any loan from any credit union operated by employees of the commonwealth. Any such authorization may be withdrawn by the retiree by giving at least 30 days notice in writing of such withdrawal to the state treasurer and by filing a copy with the treasurer of said credit union. The state treasurer making deductions under this section shall transmit the amounts so deducted to the treasurer of such credit union for the purposes specified by the retiree; provided, however, that in the case of such a union, he is satisfied by such evidence as he may require that the treasurer of the credit union has given bond as required by the law for the faithful performance of his duties. Moneys so deducted shall not be attached or taken upon execution or other process while in the custody of the state treasurer, except when so authorized by any other provision of law.
MISCELLANEOUS PROVISIONS Chapter 149: Section 178C. Sum owed estate of officer or employee of political subdivisions paid to husband, widow or next of kin Section 178C. Whenever any officer or employee or former officer or employee of a political subdivision of the commonwealth other than a county, city or town, dies, and such subdivision owes his estate any sum or sums by reason of the terms of his employment, the aggregate amount of which does not exceed five hundred dollars, and neither a duly appointed executor or administrator nor a voluntary administrator has made written demand for payment upon the treasurer of such subdivision, and such treasurer does not otherwise have actual notice that proceedings relative to the formal or informal settlement of such estate have been commenced in any probate court, such sum or sums may, in the discretion of such treasurer, be paid after the expiration of one month from the death of such officer or employee to the husband, widow or next of kin of such officer or employee. Payments made as provided in this section shall discharge all liability of the subdivision to all persons with respect to such sum or sums.
MISCELLANEOUS PROVISIONS Chapter 149: Section 178D. Repealed, 1973, 1078, Sec. 1 MISCELLANEOUS PROVISIONS Chapter 149: Section 178E. Group insurance; disposition of dividends Section 178E. If a dividend is declared or a reduction in rate is made under any group insurance policy, the excess, if any, of the aggregate dividends or rate reductions under such policy and all other group insurance policies of the policyholder over the aggregate expenditure for insurance under such policies made from funds contributed by the policyholder, or by an employer of insured persons, or by a union or association to which insured persons belong, including expenditures made in connection with administration of such policies, shall be applied by the policyholder for the sole benefit of insured employees or members.
MISCELLANEOUS PROVISIONS Chapter 149: Section 178F to 178N. Repealed, 1973, 1078, Sec. 1 MISCELLANEOUS PROVISIONS Chapter 149: Section 178O. Group insurance termination; notice of date to employee Section 178O. An employer terminating employment of an employee insured under a group insurance policy shall, within ten business days, notify said employee of the date upon which his coverage under his group insurance policy shall terminate.
MISCELLANEOUS PROVISIONS Chapter 149: Section 179. Placards posted to inform employees Section 179. The department may require employers to post in conspicuous positions in any place of employment such placards, posters or signs for the information of employees as it may issue.
MISCELLANEOUS PROVISIONS Chapter 149: Section 179A. Preference to citizens in awarding public work contracts; violations Section 179A. In the awarding of contracts for public work by the commonwealth or by a county, city or town or by persons contracting therewith to do such work, preference shall be given to persons who are citizens of the United States and to partnerships all of whose members are such citizens. Any person who knowingly and wilfully violates this section shall be punished by a fine of not more than two hundred dollars. Nothing in this section shall require the acceptance of a higher bid in preference to a lower bid.
MISCELLANEOUS PROVISIONS Chapter 149: Section 179B. Notice to commissioner of commencement or change of location of business; violations Section 179B. The owner of every factory, workshop, manufacturing, mechanical, mercantile or other establishment or industry in which twelve or more persons are employed shall, upon the commencement, or a change of location, of its operations within the commonwealth, give notice thereof to the commissioner in such form as the commissioner shall prescribe. Whoever knowingly violates this section shall be punished by a fine of not more than one hundred dollars, or by imprisonment for not more than two months, or both.
MISCELLANEOUS PROVISIONS Chapter 149: Section 179C. Collective bargaining agreements; successor clauses Section 179C. Where a collective bargaining agreement between an employer and a labor organization as defined in subsection (5) of section two of chapter one hundred and fifty A, contains a successor clause, such clause shall be binding upon and enforceable against any successor employer who succeeds to the contracting employer’s business until the expiration date of the agreement stated in the agreement. No such successor clause shall be binding upon or enforceable against any successor employer for more than three years from the effective date of the collective bargaining agreement between the contracting employer and the labor organization.
As used in this section, “successor employer” means any purchaser, assignee or transferee of a business the employees of which are subject to a collective bargaining agreement, if such purchaser, assignee, or transferee conducts or will conduct substantially the same business operation, or offer the same service and use the same physical facilities, as the contracting employer.
This section shall not apply to a receiver or trustee in bankruptcy of any contracting employer who has gone into receivership or bankruptcy, nor to any employer who acquires a business from a receiver or trustee in bankruptcy nor to any employer which is a public entity, nor to any employer who is subject to the National Labor Relations Act or the Railway Labor Act.
An employer who is a party to a collective bargaining agreement containing a successor clause has the affirmative duty to disclose the existence of such agreement and such clause to any successor employer. Such disclosure requirements shall be satisfied by including in any contract of sale, agreement to purchase, or any similar instrument of conveyance, a statement that the successor employer is bound by such clause as provided for in the collective bargaining agreement.
The provisions of this section may be enforced in a civil action in the superior court division of the trial court or by a criminal action subject to the provisions of section one hundred and eighty or by both such civil and criminal actions.
Chapter 149: Section 18. Duties of industrial health inspectors relative to minors Section 18. Every industrial health inspector shall inform himself concerning the health of all minors employed in factories within his district; and whenever he may deem it advisable or necessary, he shall call the ill health or physical unfitness of any minor to the attention of his parents, guardians or employer and of the department.
MISCELLANEOUS PROVISIONS Chapter 149: Section 180. Violation of chapter provisions with no specific penalty Section 180. Whoever violates a provision of this chapter for which no specific penalty is provided shall be punished by a fine of not more than five hundred dollars.
MISCELLANEOUS PROVISIONS Chapter 149: Section 180A. Violation of closing laws Section 180A. Whoever violates any provisions of the second paragraph of clause (50) of section six or the second paragraph of section thirteen of chapter one hundred and thirty-six shall be punished by a fine of not more than one thousand dollars.
MISCELLANEOUS PROVISIONS Chapter 149: Section 181. Retirement or health and welfare funds; failure of employer to make payments Section 181. It shall be unlawful for any employer who has entered into a collective bargaining agreement with a labor organization or association of employees providing for payments to a health or welfare fund or pension fund or other such plan for the benefit of employees to fail to make the payments required by the terms of any such agreement. Any employer who willfully fails to make such payments within sixty days after they become due and payable, shall be guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars for each offense. The term health or welfare fund or pension fund or other such plan for the benefit of employees includes any plan, trust or fund established by an employer organization, or by an employer and a labor organization or by an employer and an employee organization, the funds for which are derived in whole or in part from contributions by employers, and which exists for the purpose of paying or providing for employees or their families or dependents medical or hospital care, recreation facilities, pensions, annuities, benefits on retirement or death or unemployment of beneficiaries, severance pay, compensation for injuries or illness, insurance to provide any of the foregoing vacation or holiday benefits, apprenticeship training, or life insurance, disability or sickness or accident insurance.
MISCELLANEOUS PROVISIONS Chapter 149: Section 182. Standards of corporate behavior; companies financed with assistance of quasi-public agencies Section 182. Any person utilizing financing issued, insured, or subsidized by a quasi-public agency of the commonwealth shall agree to accept the following voluntary standards of corporate behavior, without limiting the independent powers and findings required to be made by any such quasi-public agency:In the event of a plant closing or partial closing as defined in section seventy-one A of chapter one hundred and fifty-one A, the company agrees to make a good-faith effort to provide every employee affected with the maximum practicable combination of the following: the longest practicable advance notice in cases where notice is possible and appropriate; and maintenance of income and health insurance benefits.
The company shall also, if possible, help to reemploy affected employees.
While no minimum standard is prescribed for these company responses, the commonwealth expects firms to provide at least ninety days notice or equivalent benefits whenever possible.
The precise form of said agreement shall be determined by the respective quasi-public agency.
For the purposes of this section, “quasi-public agency” shall mean, the Massachusetts Industrial Finance Agency, established by section three of chapter four hundred and ninety-six of the acts of nineteen hundred and seventy-eight, the Community Development Finance Corporation, established by section two of chapter eight hundred and sixty-six of the acts of nineteen hundred and seventy-five, the Massachusetts Technology Development Corporation, established by section one of chapter four hundred and ninety-seven of the acts of nineteen hundred and seventy-eight, the Government Land Bank, established by chapter two hundred and twelve of the acts of nineteen hundred and seventy-five, and the Massachusetts Product Development Corporation, established by chapter forty K.
MISCELLANEOUS PROVISIONS Chapter 149: Section 183. Severance pay upon termination following transfer of control of employer; definitions Section 183. (a) As used in this section, the following words, unless the context clearly requires otherwise, shall have the following meanings:—“Control”, the beneficial ownership of fifty percent or more of the outstanding voting securities of a control transferor; provided, however, that for the purposes of making percentage calculations outstanding voting securities shall include any voting stock underlying convertible securities.
“Control transferee”, the person or persons who assume control following a transfer of control as defined herein.
“Control transferor”, the person or persons who exercise control, including the power to hire and fire, before a transfer of control as defined herein; provided, however, that such person or persons are either:(i) a corporation to which the provisions of paragraph (1) of section 17.
01 of chapter 156D apply, a gas or electric company or combined gas and electric company to which section 3 of chapter 164 applies or an association or trust which pursuant to said section 3 of said chapter 164 owns beneficially a majority of the common stock of such a company or a trust company to which the provisions of chapter 172 apply, a savings bank to which certain provisions of said chapter 172 apply pursuant to section 34C of chapter 168, a cooperative bank in stock form to which certain provisions of chapter 172 apply pursuant to section 26C of chapter 170, or a national bank, federally chartered savings and loan association in stock form, or a federal savings bank in stock form; provided, however, that such corporation, trust company, savings bank, cooperative bank, national bank, federally chartered savings and loan association in stock form or a federal savings bank in stock form employs 50 or more full-time employees, or employees working aggregate hours equal to the sum of hours worked by 50 full-time employees, in the commonwealth at some point in the 12 calendar months before the transfer of control; and, provided further, that the term “control transferor” as defined in this clause (i) shall also be deemed to include any such trust company, savings bank, cooperative bank, national bank, federally chartered savings and loan association in stock form, or a federal savings bank in stock form if, immediately before the transfer of control, the control of such trust company, savings bank, cooperative bank, national bank, federally chartered savings and loan association in stock form, or a federal savings bank in stock form is held by such control transferor.
(ii) a foreign corporation established, organized or chartered under laws other than those of the commonwealth; provided, however, that such corporation employs fifty or more full-time employees, or employees working aggregate hours equal to the sum of hours worked by fifty full-time employees, in the commonwealth at some point in the twelve calendar months prior to the transfer of control; and provided, further, that such corporation is not admitted to do business pursuant to section one hundred and fifty of chapter one hundred and seventy-five.
“Employee”, any person employed for hire by an employer in any lawful employment.
“Termination of employment”, the involuntary termination of an employee’s employment consistent with the eligibility standards for unemployment benefits under section twenty-five of chapter one hundred and fifty-one A.
“Transfer of control”, a transaction or series of transactions as a result of which any person, as such term is used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934 hereinafter referred to as the “act”, is or becomes the “beneficial owner”, as defined in Rule 13d-3 under the act, directly or indirectly, of securities of a control transferor representing fifty percent or more of the control transferor’s then outstanding voting securities; provided, however, that a change in control will not be deemed to have occurred solely because of the acquisition of securities of a control transferor, or any reporting requirement under the act relating thereto, by an employee benefit plan maintained by the control transferor for its employees.
“Weekly compensation”, an employee’s base compensation in effect on the last payroll period ending prior to the transfer of control for employees eligible pursuant to subsection (b) or the time of termination of employment for employees eligible pursuant to subsection (c).
“Year of service”, each full year during which the employee has been employed by the control transferor as defined herein.
(b) Any employee of a control transferor whose employment is terminated within twenty-four calendar months after the transfer of control of his employer is entitled to a one time lump sum payment from the control transferee equal to the product of twice his weekly compensation multiplied by each completed year of service. Such severance pay to eligible employees shall be in addition to any final wage payment to the employee and shall be made within one regular pay period after the employee’s last day of work.
(c) Any employee of a control transferor whose employment is terminated within the shorter of the following periods prior to a control transfer: (1) twelve calendar months; or (2) the period of time between which the control transferee obtained a five percent interest in the voting securities of the control transferor and consummated a control transfer by obtaining a fifty percent or greater interest pursuant to a transfer of control as defined herein, is entitled to a one time lump sum payment from the control transferee equal to the product of twice his weekly compensation multiplied by each completed year of service. Such severance pay to eligible employees shall be in addition to any final wage payment to the employee and shall be made within four regular pay periods after such transfer of control.
(d) There shall be no liability for the one time payment to an otherwise eligible employee if:(1) The employee is covered by an express contract providing for such payment in the event of termination of employment in excess of that provided by this section;(2) The employee has been employed by the control transferor for less than three years;(3) A transfer of control as defined herein is the result of the transfer of securities or the beneficial interest therein, directly or indirectly, by sale, gift, bequest or otherwise, in one transaction or a series of transactions, between:(i) an individual and that individual’s spouse;(ii) an individual and that individual’s sibling or the sibling’s spouse;(iii) an individual and that individual’s lineal descendants or their spouses;(iv) an individual or a fiduciary who holds the securities or the beneficial interest therein for the benefit of any of the foregoing persons; or(4) The control transferee obtained control through enforcement of rights under pledge or other security interest created in good faith and not for the purpose of circumventing the purposes of this chapter or as a result of an assignment for the benefit of creditors, receivership, bankruptcy, enforcement by judicial process or other similar proceeding, including a transferee obtaining its interest from the person enforcing such rights or in connection with such proceeding.
(e) Upon assuming control, the control transferee shall be responsible for providing written notice to each employee of the control transferor and the collective bargaining representative, if any, of the rights of employees under this section within thirty days of completion of a transfer of control. The control transferee shall also provide written notice to the department that a control transfer has occurred. The attorney general shall assess a fine in an amount up to one thousand dollars for failure to provide such notification.
(f) In the event any eligible employee is denied a lump-sum payment as a result of a violation of this section, such employee shall have available in addition to private civil and other remedies available at law or equity, the remedies provided under sections one hundred and forty-eight to one hundred and fifty, inclusive, of chapter one hundred and forty-nine. The attorney general may take any and all appropriate actions to enforce the provisions of this section under the authority provided in said sections one hundred and forty-eight to one hundred and fifty, inclusive, of said chapter one hundred and forty-nine.
(g) For the purposes of determining eligibility under subsections (b) and (c), all determinations shall be as of the date the control transfer occurs unless specifically stated otherwise.
(h) The attorney general may promulgate such rules and regulations as may be required for the implementation of this section.
MISCELLANEOUS PROVISIONS Chapter 149: Section 184. Severance pay following transfer of control or attempted transfer of control of registered corporation; definitions Section 184. (a) As used in this section, the following words, unless the context clearly requires otherwise, shall have the following meanings:“Control transferor”, the person or persons who exercise control, including the power to hire and fire, before a contested meeting date; provided, however, that such person or persons are a registered corporation subject to subsection (b) of section 8.
06 of chapter 156D and are subject to a contested meeting.
“Registered corporation”, any corporation subject to subsection (b) of section 8.
06 of chapter 156D which has a class of voting stock registered under the Securities Exchange Act of 1934, as amended, hereinafter referred to as the “act”; provided, however, that if a corporation is subject to subsection (a) of such section 8.
06 at the time it ceases to have any class of voting stock so registered, such corporation shall nonetheless be deemed to be a registered corporation for a period of 12 months following the date it ceased to have such stock so registered.
(b) Any employee of a control transferor whose employment is terminated within the shorter of either: (i) a period of twelve calendar months following a contested meeting date of such control transferor or (ii) the period between a contested meeting date of such control transferor and a transfer of control of such control transferor is entitled to a one time lump-sum payment from the control transferor equal to the product of twice his weekly compensation multiplied by each completed year of service. Such severance pay to eligible employees shall be in addition to any final wage payment to the employee and shall be made within one regular pay period after the employee’s last day of work.
(c) There shall be no liability for the one time payment to an otherwise eligible employee if:(1) The employee is covered by an express contract providing for such payment in the event of termination of employment in excess of that provided by this section;(2) The employee has been employed by the control transferor for less than three years;(3) A transfer of control as defined herein is the result of the transfer of securities or the beneficial interest therein, directly or indirectly, by sale, gift, bequest or otherwise, in one transaction or a series of transactions, between:(i) an individual and that individual’s spouse;(ii) an individual and that individual’s sibling or the sibling’s spouse;(iii) an individual and that individual’s lineal descendants or their spouses; or(iv) an individual or a fiduciary who holds the securities or the beneficial interest therein for the benefit of any of the foregoing persons.
(4) The control transferee obtained control through the enforcement of rights under pledge or other security interest created in good faith and not for the purpose of circumventing the purposes of this section or as a result of an assignment for the benefit of creditors, receivership, bankruptcy, enforcement by judicial process or other similar proceeding, including a transferee obtaining its interest from the person enforcing such rights or in connection with such proceeding.
(d) Any amounts paid to an employee pursuant to subsection (b) of this section shall be credited against any amounts payable by a control transferee to such employee pursuant to section one hundred and eighty-three of this chapter. The control transferor is responsible for maintaining such records as may be required for adequate implementation of this provision.
(e) The control transferor shall be responsible for providing written notice to each employee of the control transferor and the collective bargaining representative, if any, of the rights of employees under this section within ten business days of the occurrence of a contested meeting. Such control transferor shall also provide written notice to the department that a contested meeting has occurred. The attorney general shall assess a fine in an amount up to one thousand dollars for failure to provide such notification.
(f) In the event any eligible employee is denied a lump-sum payment in violation of this section, such employee shall have available, in addition to private civil and other remedies available at law or equity, the remedies provided under sections one hundred and forty-eight to one hundred and fifty inclusive, of this chapter. The attorney general may take any and all appropriate actions to enforce the provisions of this section under the authority provided in said sections one hundred and forty-eight to one hundred and fifty inclusive, of this chapter.
(g) For purposes of determining eligibility under subsection (b), all determinations shall be as of the contested meeting date, unless specifically stated otherwise in this section.
(h) The attorney general may promulgate such rules and regulations as may be required for the implementation of this section.
MISCELLANEOUS PROVISIONS Chapter 149: Section 185. Retaliation against employees reporting violations of law or risks to public health, safety or environment; remedies Section 185. (a) As used in this section, the following words shall have the following meanings:—(1) “Employee”, any individual who performs services for and under the control and direction of an employer for wages or other remuneration.
(2) “Employer”, the commonwealth, and its agencies or political subdivisions, including, but not limited to, cities, towns, counties and regional school districts, or any authority, commission, board or instrumentality thereof.
(3) “Public body”, (A) the United States Congress, any state legislature, including the general court, or any popularly elected local government body, or any member or employee thereof; (B) any federal, state or local judiciary, or any member or employee thereof, or any grand or petit jury; (C) any federal, state or local regulatory, administrative or public agency or authority, or instrumentality thereof; (D) any federal, state or local law enforcement agency, prosecutorial office, or police or peace officer; or (E) any division, board, bureau, office, committee or commission of any of the public bodies described in the above paragraphs of this subsection.
(4) “Supervisor”, any individual to whom an employer has given the authority to direct and control the work performance of the affected employee, who has authority to take corrective action regarding the violation of the law, rule or regulation of which the employee complains, or who has been designated by the employer on the notice required under subsection (g).
(5) “Retaliatory action”, the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.
(b) An employer shall not take any retaliatory action against an employee because the employee does any of the following:(1) Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or of another employer with whom the employee’s employer has a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment;(2) Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law, or activity, policy or practice which the employee reasonably believes poses a risk to public health, safety or the environment by the employer, or by another employer with whom the employee’s employer has a business relationship; or(3) Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.
(c)(1) Except as provided in paragraph (2), the protection against retaliatory action provided by subsection (b) (1) shall not apply to an employee who makes a disclosure to a public body unless the employee has brought the activity, policy or practice in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment, to the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable opportunity to correct the activity, policy or practice.
(2) An employee is not required to comply with paragraph (1) if he: (A) is reasonably certain that the activity, policy or practice is known to one or more supervisors of the employer and the situation is emergency in nature; (B) reasonably fears physical harm as a result of the disclosure provided; or (C) makes the disclosure to a public body as defined in clause (B) or (D) of the definition for “public body” in subsection (a) for the purpose of providing evidence of what the employee reasonably believes to be a crime.
(d) Any employee or former employee aggrieved of a violation of this section may, within two years, institute a civil action in the superior court. Any party to said action shall be entitled to claim a jury trial. All remedies available in common law tort actions shall be available to prevailing plaintiffs. These remedies are in addition to any legal or equitable relief provided herein. The court may: (1) issue temporary restraining orders or preliminary or permanent injunctions to restrain continued violation of this section; (2) reinstate the employee to the same position held before the retaliatory action, or to an equivalent position; (3) reinstate full fringe benefits and seniority rights to the employee; (4) compensate the employee for three times the lost wages, benefits and other remuneration, and interest thereon; and (5) order payment by the employer of reasonable costs, and attorneys’ fees.
(e)(1) Except as provided in paragraph (2), in any action brought by an employee under subsection (d), if the court finds said action was without basis in law or in fact, the court may award reasonable attorneys’ fees and court costs to the employer.
(2) An employee shall not be assessed attorneys’ fees under paragraph (1) if, after exercising reasonable and diligent efforts after filing a suit, the employee moves to dismiss the action against the employer, or files a notice agreeing to a voluntary dismissal, within a reasonable time after determining that the employer would not be found liable for damages.
(f) Nothing in this section shall be deemed to diminish the rights, privileges or remedies of any employee under any other federal or state law or regulation, or under any collective bargaining agreement or employment contract; except that the institution of a private action in accordance with subsection (d) shall be deemed a waiver by the plaintiff of the rights and remedies available to him, for the actions of the employer, under any other contract, collective bargaining agreement, state law, rule or regulation, or under the common law.
(g) An employer shall conspicuously display notices reasonably designed to inform its employees of their protection and obligations under this section, and use other appropriate means to keep its employees so informed. Each notice posted pursuant to this subsection shall include the name of the person or persons the employer has designated to receive written notifications pursuant to subsection (c).
MISCELLANEOUS PROVISIONS Chapter 149: Section 186. Broadcasting industry; noncompete agreements Section 186. Any contract or agreement which creates or establishes the terms of employment for an employee or individual in the broadcasting industry, including, television stations, television networks, radio stations, radio networks, or any entities affiliated with the foregoing, and which restricts the right of such employee or individual to obtain employment in a specified geographic area for a specified period of time after termination of employment of the employee by the employer or by termination of the employment relationship by mutual agreement of the employer and the employee or by termination of the employment relationship by the expiration of the contract or agreement, shall be void and unenforceable with respect to such provision. Whoever violates the provisions of this section shall be liable for reasonable attorneys’ fees and costs associated with litigation of an affected employee or individual.
MISCELLANEOUS PROVISIONS Chapter 149: Section 187. Health care providers; protection from retaliatory action by health care facilities Section 187. (a) As used in this section, the following words shall have the following meanings:-“Health care facility”, an individual, partnership, association, corporation or trust or any person or group of persons that employs health care providers, including any hospital, clinic, convalescent or nursing home, charitable home for the aged, community health agency or other provider of health care services licensed, or subject to licensing by, or operated by, the department of public health; any facility as defined in section 3 of chapter 111B; any private, county or municipal facility, department or unit which is licensed or subject to licensing by the department of mental health pursuant to section 19 of chapter 19, or by the department of mental retardation pursuant to section 15 of chapter 19B; any facility as defined in section 1 of chapter 123; the Soldiers’ Home in Holyoke, the Soldiers’ Home in Massachusetts; or any facility as set forth in section 1 of chapter 19 or section 1 of chapter 19B.
“Health care provider”, an individual who is a licensed health care provider under the provisions of chapter 112 including, but not limited to, registered nurses, licensed practical nurses, physicians, physician assistants, chiropractors, dentists, occupational therapists, physical therapists, optometrists, pharmacists, podiatrists, psychologists and social workers or any other health care provider who performs or has performed health care related services for and under the control of a health care facility for care-related services.
“Manager”, an individual to whom a health care facility has given the authority to direct and control the work performance of the affected health care provider, who has authority to take corrective action regarding a violation of a law, rule, regulation, activity or policy or violation of professional standards of practice of which the health care provider complains or who has been designated by the health care facility on the notice required under subsection (h).
“Public body”, the United States Congress, any state legislature, including the general court, or popularly elected local government body or member or health care provider thereof; any federal, state or local regulatory, administrative or public agency or authority or instrumentality thereof; any federal, state or local law enforcement agency, prosecutorial office or police or peace officer; or any division, board, bureau, office, committee or commission of any of the public bodies described herein.
“Retaliatory action”, the discharge, suspension, demotion, harassment, denial of a promotion or layoff or other adverse action taken against a health care provider affecting the terms and conditions of employment.
(b) A health care facility shall not refuse to hire, terminate a contractual agreement with or take any retaliatory action against a health care provider because the health care provider does any of the following:(1) discloses or threatens to disclose to a manager or to a public body an activity, policy or practice of the health care facility or of another health care facility with whom the health care provider’s health care facility has a business relationship, that the health care provider reasonably believes is in violation of a law or rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health;(2) provides information to or testifies before any public body conducting an investigation, hearing or inquiry into any violation of a law, or rule or regulation promulgated pursuant to law or activity, policy or professional standards of practice of a health care provider, by the health care facility or by another health care facility with whom the health care provider’s health care facility has a business relationship, which the health care provider reasonably believes poses a risk to public health;(3) objects to or refuses to participate in any activity, policy or practice of the health care facility or of another health care facility with whom the health care provider’s health care facility has a business relationship which the health care provider reasonably believes is in violation of a law or rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health; or(4) participates in any committee or peer review process, files a report or a complaint, or an incident report discussing allegations of unsafe, dangerous or potentially dangerous care.
(c)(1) Except as provided in clause (2) of subsection (b), the protection against retaliatory action provided by clause (1) of said subsection (b) shall not apply to a health care provider who makes a disclosure to a public body unless the health care provider has brought the activity, policy or practice in violation of a law or rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health, to the attention of a manager of the health care provider by written notice and has afforded the health care facility a reasonable opportunity to correct the activity, policy or practice.
(2) A health care provider shall not be required to comply with paragraph (1) if he: (i) is reasonably certain that the activity, policy or practice is known to one or more managers of the health care facility and the situation is emergent in nature; (ii) reasonably fears physical harm as a result of the disclosure; or (iii) makes the disclosure to a public body for the purpose of providing evidence of what the health care provider reasonably believes to be a crime.
(d) Any health care provider or former health care provider aggrieved by a violation of this section may, within two years, institute a civil action in the superior court. Any party to such action shall be entitled to claim a jury trial. All remedies available in common law tort actions shall be available to prevailing plaintiffs. The remedies shall be in addition to any legal or equitable relief provided herein. The court may:(1) issue a temporary restraining order or preliminary or permanent injunction to restrain continued violation of this section;(2) reinstate the health care provider to the same position held before the retaliatory action, or to an equivalent position;(3) reinstate full fringe benefits and seniority rights to the health care provider;(4) compensate the health care provider for lost wages, benefits and other remuneration, and interest thereon; and(5) order payment by the health care facility of reasonable litigation costs, reasonable expert witness fees and reasonable attorneys’ fees. A health care provider may bring an action in the appropriate superior court or the superior court of the county of Suffolk for the relief provided in this subsection. The health care provider or former health care provider shall deliver a copy of the complaint to the attorney general. The attorney general shall establish and maintain a register of all complaints made by health care personnel under this section.
(e)(1) Except as provided in paragraph (2), in any action brought by a health care provider under subsection (d), if the court finds the action was without basis in law or in fact, the court may award reasonable attorneys’ fees and court costs to the health care facility.
(2) A health care provider shall not be assessed attorneys’ fees under paragraph (1) if, upon exercising reasonable and diligent efforts after filing the action, the health care provider moves to dismiss the action against the health care facility, or files a notice agreeing to a voluntary dismissal, within a reasonable time after determining that the health care facility would not be found liable for damages.
(f) Whenever he believes it to be in the public interest, the attorney general may bring an action in the name of the commonwealth against any health care facility violating the provisions of subsection (b) or subsection (h). Such an action may be brought in the superior court and any party thereto may claim trial by jury. In any action under this section, in addition to the remedies the court may provide in accordance with subsection (d), the court may require the health care facility to pay to the commonwealth a civil penalty of not more than $10,000 for each violation, as well as the cost of reasonable attorneys’ fees and reasonable expert witness fees.
(g) Nothing in this section shall be deemed to diminish the rights, privileges or remedies of any health care provider under any other federal or state law or regulation or under any collective bargaining agreement or employment contract.
(h) A health care facility shall conspicuously display notices reasonably designed to inform its health care providers of their protection and obligations under this section and use other appropriate means to keep its health care providers so informed. Each notice posted pursuant to this subsection shall include the name of the persons the health care facility has designated to receive written notifications pursuant to subsection (c). Any health care facility which violates the provisions of this subsection shall be punished by a fine of not less than $250 nor more than $2,500. The provisions of this subsection shall be enforced by the attorney general.
(i) The attorney general may promulgate rules and regulations necessary and appropriate to enforce the provisions of this section.
Chapter 149: Section 18A. Sanitary and safety conditions; tools Section 18A. Employers shall provide a change room with adequate storage facilities for clothes, shower baths and lavatories having hot and cold water, in every place of employment where the lack of such facilities would be harmful to health.
Every place of employment (dock, wharf, etc.
), shall be provided with a sufficient number of water closets for the use of employees. Toilets shall be kept clean and supplied with an adequate supply of toilet paper.
Working areas, docks, stairways, etc.
, shall be provided with illumination which is adequate and suitable to secure the safety of employees.
Whenever harmful dusts, fumes, mists, vapors or gases exist in quantities harmful to employees, and the elimination of such hazards is not practicable, such hazards shall be controlled by ventilation or other means.
When it is impracticable to comply with the above requirement, the employer shall provide, and the employee exposed to such hazards shall use, approved respiratory protective equipment. This equipment shall be kept in sanitary condition.
Permanent floors, platforms, dock working areas, aisles and passageways shall be kept reasonably clear and in good repair. Where, due to lack of proper marking, aisles and passageways become hazardous, they shall be clearly defined by painted lines, curbings or other methods of marking. Where there is danger of slipping on these working areas, they shall be protected by the use of mats, cleats, high-friction surfaces or other equivalent protection.
The maximum weight of materials stored on building floors, load-carrying platforms or dock areas shall not exceed their safe-carrying. Material, wherever stored, shall be piled, stacked or racked in a manner designed to prevent it from tipping, falling, collapsing, rolling or spreading.
Hand tools and hand trucks shall be maintained in a safe condition. Unsafe tools or trucks shall not be used. Where there is danger of a portable ladder slipping in use, provision shall be made to secure the ladder in position by use of hooks, ropes, scabs, spikes, cleats or by other antislip devices, or by stationing an employee at the base of the ladder to hold it in position during use.
Ladders shall be maintained in good condition.
Ladders shall be faced, and both hands used, while ascending or descending.
Platforms, runways, ramps or other working areas four feet or more above the floor, ground or other working areas shall be guarded by a standard railing on all open sides, with the exception of open sides of loading or storage platforms which are used primarily for loading or unloading railroad cars or trucks, and open sides of storage platforms less than four feet wide, or portions thereof, which are loaded and unloaded exclusively by means of stackers or lift trucks handling pallet-supported loads.
Adequate and substantial bull rails, stringer rails or curbs shall be installed at the water side of all flush aprons on wharves, docks or piers.
The employer shall require that tools, machinery, gear and other equipment subject to wear be inspected at regular intervals and unsafe conditions corrected. If found to be defective or otherwise unsafe, employees shall report same to the person in charge of work, who shall have it discarded, marked and so placed that it cannot be used again until made safe.
Chapter 149: Section 18B. Confined spaces; ventilation Section 18B. Before allowing employees to enter confined spaces where flammable, poisonous, asphyxiant, suffocant or anesthetic vapors, gases or dusts are likely to exist, the area shall be made free of the hazardous substance; employees shall be advised of the hazard; adequate ventilation shall be provided; and proper respiratory equipment shall be provided where necessary.
Chapter 149: Section 18C. Power transmission equipment Section 18C. Power transmission equipment (such as gears, belts, pulleys, sprockets, etc.
) shall be enclosed or guarded in a manner that will prevent accidental injury to workers.
Prime movers, machinery and equipment shall not be cleaned, adjusted or repaired while in motion. When, due to the process, it is not possible to shut down the machinery, extension swabs, brushes, scrapers or other extended tools shall be used to minimize employee hazards. Where the machine is equipped with lockable controls, the control shall be locked in the “off” position. Caution signs shall be placed on the controls of the machines during repair work.
Chapter 149: Section 18D. Ropes, hooks and cranes; use and operation Section 18D. All chains, wire ropes and fiber ropes shall be of sufficient strength to safely lift or otherwise handle the loads.
The use of deformed hooks or rings shall be discontinued.
All hooks, slings, bridles and fittings shall be of the correct size for the work to be done, and shall have sufficient strength to sustain the loads imposed upon them. Wire bridles shall have a covering of marlin, rubber hose or other suitable material for the protection of the employee’s hands at the splice.
A crane, derrick, hoist or winch shall not be loaded beyond the rated capacity or safe working load, whichever is smaller.
The load shall be attached to the hook by means of slings or other suitable effective means, which shall be properly rigged to insure the safe handling of the load. Slings shall be free of kinks or twists before use.
No employee shall be required to or shall ride on loads, slings, hooks, buckets or skip boxes, except under conditions or exception covered by other orders of the division.
Operator shall never leave crane, hoist, derrick or winch while load is suspended unless the load is suspended over water or a barricaded area, or is blocked up or otherwise supported from below during repair or emergency.
Only qualified employees shall give signals. No one should give signals except employees who are specifically designated and authorized to do so by the employer. Operators shall not accept signals except from those specifically designated and authorized to give same.
Chapter 149: Section 18E. Safety precautions in dangerous undertakings Section 18E. Persons working in locations where there is a hazard to the head or eyes shall be safeguarded by means of head or eye protection.
Protection may be required for persons working under conditions where there is a hazard to the body, hands or feet.
Safety belts shall be of approved type. Lifelines shall be of strength equivalent to one-half inch manila rope.
At least two life buoys or life rings with appropriate lines attached shall be kept in conveniently accessible places where employees’ work exposes them to the hazard of drowning, or each employee so exposed shall wear a life vest. Life vests may be required for workers who are in constant and imminent danger of drowning.
Readily located ladders shall be provided on all docks, wharves or piers where employees’ work exposes them to the hazard of drowning. The ladders shall reach from the floor of the structure to the lowest water elevation. Portable ladders shall be equipped with a substantial means to readily secure them to the structure.
Chapter 149: Section 18F. Explosives Section 18F. Explosives and other dangerous articles and substances shall be loaded, unloaded, stored, transported or otherwise handled in accordance with United States Coast Guard regulations.
Chapter 149: Section 18G. Industrial truck and internal combustion equipment; operation; construction of docks Section 18G. Every industrial truck (lift truck or jitney) and tractor, except those guided or controlled by a walking operator shall be equipped with a clearly audible horn or other warning device.
Every industrial truck (lift truck or jitney) operated from an end platform shall be equipped with a substantial guard to protect the operator. This guard should allow the operator quick and easy access to and from his operating position.
The division may require every high-lift truck (lift jitney) to be provided with a canopy guard which will protect the operator from falling objects.
Every high-lift industrial truck (lift jitney) handling small objects or unstable loads shall be equipped with a vertical back rest or back guard at the rear of the load platform. This does not apply to lift trucks equipped with canopy guards in compliance with preceding paragraph.
Every dock or car plate shall be constructed to support its load. It shall be safely secured in position and shall provide rigid security over its span. The end edges of the plate shall be in substantial contact with the dock or loading platform and the vehicle bed in a manner that will prevent rocking or sliding. Adequate and safe means shall be provided for moving plates.
Pallets shall be constructed and maintained with strength adequate for the loads being handled. They shall be kept in good repair. Pallets upon which employees customarily walk shall have no surface opening in excess of two inches in width.
Internal combustion engine-driven equipment shall not be operated inside of buildings or enclosed structures, if such operation would result in harmful exposure to concentrations of dangerous gases or fumes in excess of maximum acceptable concentrations. Exhaust pipes shall be installed in such a manner that the exhaust products shall be discharged so as not to be a hazard to the operator.
The rated capacity of all high-lift trucks (lift jitneys) shall be displayed at all times on the vehicles so that it is readily visible to the operator. They shall not be loaded beyond their rated capacity. Counterweights may be added to increase lifting capacity, provided they do not impair the stability of the vehicle or stress any of the structural members beyond a safe limit.
Every employer shall promulgate, post and enforce a set of operating rules. These rules shall govern the control, operation and maintenance of all industrial trucks.
Refueling of internal combustion engine fuel tanks shall be done in designated areas. Suitable and adequate gasoline pumps shall be used. Gasoline shall not be handled in open containers. Motors shall be stopped and no source of ignition shall be permitted in the vicinity of the refueling operation. Federal and local regulations shall be enforced.
Before operating any truck, drivers shall check the vehicle and if it is found to be in any way unsafe, it shall be reported to the proper authority and shall not be operated until it has been made safe. Brakes shall be tested on starting each trip.
Chapter 149: Section 18H. Stop signals Section 18H. The employer shall provide blue stop signs for use by day and blue lights if night work is necessary, and shall cause them to be displayed before employees are permitted to work in, upon or under any standing railroad car or cars under conditions where unanticipated movement of such car or cars might endanger employees or equipment. The blue signals shall bear the word STOP in white letters not less than four inches in height on a blue background, and shall be placed on the track in a clear and unobstructed place. The signs shall be not less than twelve inches by fifteen inches in size. The signals shall be placed at a height of three to five feet, and not less than ten feet from either or both ends of the cars, as necessary to provide protection. The blue stop signals shall be placed and removed by one of the employees working in and about the cars. This employee shall be selected, instructed and directed by the employer in the safe procedures involved in placing and removing the blue stop signals.
Chapter 149: Section 18I. Penalty Section 18I. Any person violating any provision of the preceding sections eighteen A, eighteen B, eighteen C, eighteen D, eighteen E, eighteen F, eighteen G and eighteen H shall be punished by a fine of one thousand dollars.
Chapter 149: Section 19. Prevention of employment Section 19. No person shall, by intimidation or force, prevent or seek to prevent a person from entering into or continuing in the employment of any person.
Chapter 149: Section 19A. Copy of medical report for employee Section 19A. Any employer requiring a physical examination of an employee shall, upon request, cause said person to be furnished with a copy of the medical report following the said examination.
Chapter 149: Section 19B. Lie detector tests; use as condition of employment; penalty; civil action Section 19B. (1) As used in this section the term “lie detector test” shall mean any test utilizing a polygraph or any other device, mechanism, instrument or written examination, which is operated, or the results of which are used or interpreted by an examiner for the purpose of purporting to assist in or enable the detection of deception, the verification of truthfulness, or the rendering of a diagnostic opinion regarding the honesty of an individual.
(2) It shall be unlawful for any employer or his agent, with respect to any of his employees, or any person applying to him for employment, including any person applying for employment as a police officer, to subject such person to, or request such person to take a lie detector test within or without the commonwealth, or to discharge, not hire, demote or otherwise discriminate against such person for the assertion of rights arising hereunder. This section shall not apply to lie detector tests administered by law enforcement agencies as may be otherwise permitted in criminal investigations.
(a) The fact that such lie detector test was to be, or was, administered outside the commonwealth for employment within the commonwealth shall not be a valid defense to an action brought under the provisions of subsection (3) or (4).
(b) All applications for employment within the commonwealth shall contain the following notice which shall be in clearly legible print:“It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment. An employer who violates this law shall be subject to criminal penalties and civil liability.
”(3) Any person who violates any provision of this section shall be punished by a fine of not more than one thousand dollars nor less than three hundred dollars. Second and subsequent violations of any provision of this section shall be punishable by a fine of not more than fifteen hundred dollars or by imprisonment for not more than ninety days, or both such fine and imprisonment.
In the case of a corporation, the responsible individual shall be the president, chief operating officer or any managerial or supervisory person who allows or condones such violation.
No waiver of the provisions of this section by an employee or prospective employee shall be a defense to either criminal prosecution or civil liability.
(4) Any person aggrieved by a violation of subsection (2) may institute within three years of such violation and prosecute in his own name and on his own behalf, or for himself and for other similarly situated, a civil action for injunctive relief and any damages thereby incurred, including treble damages for any loss of wages or other benefits. The total awarded damages shall equal or exceed a minimum of five hundred dollars for each such violation. A person so aggrieved and who prevails in such action shall be entitled to an award of the costs of the litigation and reasonable attorney fees.
Chapter 149: Section 19C. Employment of aliens restricted; regulations; penalty Section 19C. It shall be unlawful for any employer knowingly to employ any alien in the commonwealth, who is a student or visitor or, who has not been admitted to the United States for permanent residence, except those who are admitted under a work permit, or unless the employment of such alien is authorized by the attorney general of the United States. An employer shall not be deemed to have violated this section if he has made a bona fide inquiry whether a person hereafter employed or referred by him is a citizen or an alien, and if an alien, whether he is lawfully admitted to the United States for permanent residence, or admitted under a work permit, or is authorized by the attorney general of the United States to accept employment.
The commissioner shall promulgate regulations specifying the procedure to be followed by each employer to insure compliance with the provisions of this section.
Any person who violates any provision of this section shall be punished by a fine of not more than five hundred nor less than two hundred dollars.
Chapter 149: Section 2. Enforcement of chapter Section 2. The attorney general shall, except as otherwise specifically provided, enforce the provisions of this chapter, and shall have all necessary powers therefor.
Chapter 149: Section 20. Coercion of agreement not to join a labor organization Section 20. No person shall, himself or by his agent, coerce or compel a person into a written or oral agreement not to join or become a member of a labor organization as a condition of his securing employment or continuing in the employment of such person.
Chapter 149: Section 20A. Relief afforded by contract relative to membership in a labor or employer organization Section 20A. No contract, whether written or oral, between any employee or prospective employee and his employer, prospective employer or any other person, whereby either party thereto undertakes or promises not to join or not to remain a member of some specified labor organization or any labor organization, or of some specified employer organization or any employer organization, and/or to withdraw from an employment relation in the event that he joins or remains a member of some specified labor organization or any labor organization, or of some specified employer organization or any employer organization or organizations, shall afford any basis for the granting of legal or equitable relief by any court against a party to such undertaking or promise.
Chapter 149: Section 20B. Liability for unlawful acts of officers, members or agents of an organization Section 20B. No officer or member of any association or organization, and no association or organization, participating or interested in a labor dispute, as defined in section twenty C, shall be held responsible or liable in any court for the unlawful acts of individual officers, members or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.
Chapter 149: Section 20C. Definitions Section 20C. For the purposes of this and the preceding section, section twenty-four of chapter one hundred and forty-nine, sections one and six of chapter two hundred and fourteen, and sections thirteen A and thirteen B of chapter two hundred and twenty,—(a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft or occupation; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a “labor dispute” (as hereinafter defined) of “persons participating or interested” therein (as hereinafter defined).
(b) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it, and if he or it is engaged in the same industry, trade, craft or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer or agent of any association composed in whole or in part of employers or employees engaged in such industry, trade, craft or occupation.
(c) The term “labor dispute”, when used in the sections hereinbefore referred to, includes any controversy arising out of any demand of any character whatsoever concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange, terms or conditions of employment, regardless of whether the disputants stand in proximate relation of employer and employee.
(d) Except as provided in subsection (e) of this section, the term “lawful labor dispute” includes any controversy concerning—(1) The association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange, terms or conditions of employment;(2) The recognition or bargaining status of a labor organization;(3) Rates of pay, wages, hire or tenure or hours of employment, or working conditions;(4) The execution or performance of an agreement to arbitrate an existing or future labor dispute;(5) The execution or performance of a collective bargaining agreement containing any lawful provision of a kind commonly found in collective bargaining agreements (including but not limited to any provision requiring as a condition of employment membership in a labor organization which is the exclusive representative of the employees in the appropriate collective bargaining unit covered by such agreement when made); or(6) Any term or condition of employment which has heretofore been regarded as a lawful objective of concerted activities on the part of employees or labor organization.
The foregoing definition shall be applicable regardless of whether the disputants stand in the proximate relation of employer and employee, but shall not be deemed to include any “unlawful labor dispute” or “unlawful secondary boycott” as defined in the following subsections:—(e) The term “unlawful labor dispute” includes any controversy arising out of a demand—(1) That an employer commit a criminal offence or unfair employment practice in violation of chapter one hundred and fifty-one B or unfair labor practice either in violation of chapter one hundred and fifty A, or in violation of the National Labor Relations Act;(2) That an employer include in a collective bargaining agreement any provision the execution or performance of which would be unlawful;(3) That an employer recognize or bargain collectively with any labor organization as the representative of its employees in any bargaining unit while another labor organization is the representative of such employees certified by the labor relations commission established by section nine O of chapter twenty-three, or by the National Labor Relations Board, prior to the time said commission, or board, would conduct a new investigation and certification of representatives.
(4) That an employer recognize or bargain collectively with any labor organization as the representative of its employees in any bargaining unit within one year after the labor relations commission established by section nine O of chapter twenty-three has determined in a proceeding under section five of chapter one hundred and fifty A that such employees do not desire to be represented by such labor organization; or(5) Made by any party to a jurisdictional dispute as defined in section six A of chapter two hundred and fourteen who has failed to abide by any voluntary arbitration procedure applicable to such dispute or to comply with the terms of the arbitration award.
(f) The term “unlawful secondary boycott” means any strike, slowdown, boycott, or concerted cessation of work or withholding of patronage or services, arising out of a labor dispute, where an object thereof is to force or require any person not otherwise engaged in such labor dispute to cease using, selling, handling, transporting, or dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; provided, however, that a secondary boycott may lawfully be directed at a person the greater part of whose current business over a representative period is processing, selling, handling, transporting or otherwise dealing in the goods of an employer primarily interested in a lawful labor dispute or who, by any agreement, understanding or arrangement with such employer, is requiring his own employees to perform work or services which would be done by the employees of such employer in the absence of a labor dispute.
Chapter 149: Section 20D. Solicitation, acceptance or payment of money to encourage or discourage formation or functioning of a labor organization Section 20D. No employer and no person retained or engaged by him as a labor relations expert, adviser or consultant or retained or engaged by such employer for the purpose of dealing or negotiating with any of his employees or with any labor organization representing or seeking to represent or organize such employees shall, himself or by his agent, pay or deliver or agree to pay or deliver, directly or indirectly, to any employee or to any group or committee of employees, nor shall any employee or labor union official solicit or accept from any employer or any person so retained or engaged by him, or his agent, any money or other thing of value for the purpose of encouraging or discouraging, or in any way interfering with, any employee or employees in exercising their rights to organize or to select a representative, or for the purpose of preventing the continued existence, operation or functioning of a labor organization; provided, however, that this section shall not apply to the payment of wages by such employer to an employee who is a union representative, to any payment for the purchase of goods at the prevailing market price from a union representative, to the payment of any debt, to the transfer of union dues properly withheld from the salaries or wages of employees, to payments to employees’ trust or welfare funds, or to payments of salaries or fees to an employee, representative or agent for the performance of any lawful activity with respect to the expression of views or opinions in connection with pending employee elections or labor disputes or other matters involving relations between such employer and his employees. Whoever violates any provision of this section shall be punished by a fine of not more than three thousand dollars or by imprisonment in jail for not more than one year, or both.
Chapter 149: Section 20E. Business combination transactions; labor contracts; definitions; remedies Section 20E. No business combination transaction shall result in the termination or impairment of the provisions of any labor contract covering persons engaged in employment in the commonwealth negotiated by a labor organization or by a collective bargaining agent or other representative. Notwithstanding such business combination transaction, such labor contract shall continue in effect until its termination date or until otherwise agreed upon by the parties to such contract or their successors.
As used in this section, the following words, unless the context clearly requires otherwise, shall have the following meanings:—“Business combination transaction”, any merger or consolidation, sale, lease, exchange or other disposition, in one transaction or a series of transactions, whether of all or substantially all the property and assets, including its good will, of the business operations that are the subject of the labor contract referred to in the first paragraph or any transfer of a controlling interest in such business operations;“Employment”, an individual’s entire service, performed within and without the commonwealth, if the service is localized in the commonwealth. Service shall be deemed to be localized in the commonwealth if: (i) the service is performed entirely within the commonwealth; or (ii) the service is performed both within and without the commonwealth but the service performed without the commonwealth is incidental to the individual’s service within the commonwealth, as where such service is temporary or transitory in nature or consists of isolated transactions.
Employment shall include an individual’s service, performed within and without the commonwealth, if the service is not localized in any state, but some of the service is performed in the commonwealth; and (i) the individual’s base of operations is in the commonwealth; or (ii) if there is no base of operations, then the place for which such service is directed or controlled is in the commonwealth; or (iii) the individual’s base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual’s residence is in the commonwealth.
In the event that an employee is denied or fails to receive wages, benefits or wage supplements as a result of a violation of this section, such employee shall have available, in addition to private civil and other remedies available at law or equity, the remedies under the provisions of sections one hundred and forty-eight to one hundred and fifty, inclusive, of chapter one hundred and forty-nine. The department or the attorney general may take any and all appropriate action to enforce the provisions of this section including, but not limited to, injunctions, cease and desist orders and penalties provided for in sections one hundred and forty-eight to one hundred and fifty, inclusive.
Recovery pursuant to a violation of this section shall be applicable to secure recovery against the merged, consolidated or resulting corporation or other successor employer, notwithstanding the provisions of this section or any other general or special law to the contrary.
Chapter 149: Section 21. False notices or advertisement for help or employment Section 21. Whoever knowingly causes to be printed or published a false or fraudulent notice or advertisement for help or for obtaining work or employment, or whoever, in an advertisement for help, if the person to be employed is required to purchase a particular article of value as a condition of his employment, fails to state that the offer of employment is contingent upon the purchase of such article and the purchase price of such article, shall be punished by a fine of not more than two thousand dollars or by imprisonment for not more than three months, or both.
Chapter 149: Section 22. Advertising for or soliciting employees during labor troubles; notice to employment agency; employment of children Section 22. If an employer, during the continuance of a strike, lockout or other labor trouble among his employees, publicly advertises in newspapers or by posters or otherwise for employees, or by himself or his agents solicits persons to work for him to fill the places of strikers, he shall plainly in type as prominent as the largest printed matter in the advertisement or poster and explicitly mention in such advertisements or oral or written solicitations that a strike, lockout or other labor trouble exists among his employees. Any such employer wishing to hire employees through an employment agency shall first notify such agency by registered mail of the fact that a strike, lockout or other labor trouble exists. No employer shall, during the continuance of a strike, lockout or labor dispute, hire a child without the written consent of his parent or legal guardian.
Chapter 149: Section 22A. Professional strikebreakers; obstruction of picketing Section 22A. No person shall knowingly employ any professional strikebreaker in the place of an employee involved in a lockout or lawful strike. No professional strikebreaker shall take or offer to take the place in employment of an employee who is involved in a lockout or lawful strike. A “professional strikebreaker” is defined as a person who regularly and habitually earns a major portion of his livelihood by entering into employment where a lockout or strike exists to take the place of an employee whose work has ceased as a direct consequence of such lockout or strike.
No person shall engage in any activities or employ any person for the purpose of obstructing or interfering by force or threats with (1) peaceful picketing by employees during any labor controversy affecting wages, hours or conditions of labor, or (2) the exercise by employees of any of the rights granted employees under the provisions of chapter one hundred and fifty A or of the federal Labor-Management Relations Act of 1947.
This section shall not apply to the employment of any person whose services are necessary to ensure that the plant or other property of the employer involved in the strike or lockout is properly maintained and protected for the resumption at any time of normal operations.
Whoever violates any provisions of this section shall be punished by a fine of not more than two thousand dollars.
Chapter 149: Section 23. Filling place of employees; size of letters mentioning labor troubles; penalty Section 23. No person, during the continuance of a strike, lockout or other labor trouble among his employees or those of another person, shall directly or indirectly procure or attempt to procure, or assist in any way in procuring or attempting to procure, persons to fill the places of employees involved in such strike, lockout or other labor trouble, if such persons are or have been solicited by means of advertisements or oral or written statements in which it has not been plainly and explicitly mentioned that a strike, lockout or other labor trouble exists in the establishment where such persons are to be employed. This provision shall apply whether such advertisements or oral or written solicitations were made within or without the commonwealth. In printed advertisements or in signs or posters, the mention of the strike, lockout or other labor trouble shall be in letters as large as the largest letters used in the body of said advertisement, sign or poster.
Any person violating any provision of this or the preceding section shall be punished by a fine of not more than two thousand dollars.
Chapter 149: Section 23A. Armed guards during labor troubles; qualifications; violation of statute Section 23A. No person, during the continuance of a strike, lockout or other labor trouble among his employees or those of another person, shall directly or indirectly employ or procure for the protection of such employees any armed guards other than watchmen regularly employed by such person, police officers or persons licensed under sections twenty-three to thirty, inclusive, of chapter one hundred and forty-seven or employees of such licensees; provided, that the foregoing shall not authorize the employing or procuring as aforesaid of any such licensee unless he shall have been so licensed at least two months prior to the commencement of such labor trouble, or of any employee of such a licensee unless such employee is a citizen of Massachusetts, and shall not have been convicted of a felony. Any person violating this section shall be punished by a fine of not more than two thousand dollars or by imprisonment for not more than six months, or both.
Chapter 149: Section 23B. Use of civil defense personnel in labor disputes Section 23B. The auxiliary police or other personnel originally organized by civil defense agencies under state or federal civil defense laws shall not be used or called upon for service as such in any industrial or labor dispute or to regulate picketing in connection with a strike.
Chapter 149: Section 24. Communications and conduct during labor disputes Section 24. No person shall be punished criminally, or held liable or answerable in any action at law or suit in equity, for persuading or attempting to persuade, by printing or otherwise, any other person to do anything, or to pursue any line of conduct not unlawful or actionable or in violation of any marital or other legal duty, unless such persuasion or attempt to persuade is accompanied by injury or threat of injury to the person, property, business or occupation of the person persuaded or attempted to be persuaded, or by disorder or other unlawful conduct on the part of the person persuading or attempting to persuade, or is a part of an unlawful labor dispute or unlawful secondary boycott, or is a part of an unlawful or actionable conspiracy and not a part of a lawful labor dispute, nor for attending in the course of a lawful labor dispute, at any place where such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information or of so persuading or attempting to persuade.
Chapter 149: Section 24A. Dismissal or refusal to employ; penalty Section 24A. Whoever dismisses from private sector employment any person over the age of forty, or refuses to employ such person because of his age, except as permitted by subsection 17 of section 4 of chapter one hundred and fifty-one B, shall be punished by a fine of not more than five hundred dollars.
Chapter 149: Section 24B. Contract provisions Section 24B. Any provision in any contract, agreement or understanding entered into on or after September first, nineteen hundred and eighty-four, which shall prevent the private sector employment of any person over the age of forty because of his age, except as permitted by subsection 17 of section 4 of chapter one hundred and fifty-one B, shall be null and void.
Chapter 149: Section 24C. Investigation of complaints; ascertainment of age of employees; examination and transcript of records Section 24C. The department shall investigate all complaints of discrimination, and for that purpose the commissioner or his authorized representative shall have full power and authority (1) to investigate and ascertain the age of each person employed within the commonwealth and (2) to enter any place of business or employment, other than places of employment of persons engaged in domestic service in the home of the employer, within the commonwealth for the purpose of examination and making a transcript of records in any way appertaining to or having a bearing upon the question of the age of any person so employed.
Chapter 149: Section 24D. Records of ages of employees; copy furnished to commissioner; violation of statute Section 24D. Every person shall keep true and accurate records of the ages of all persons employed by him, as far as practicable to do so, and shall upon demand furnish to the commissioner or his authorized representative a true copy of any such record, verified upon oath. Such records shall be open to investigation by the commissioner or his authorized representative at any reasonable time. Whoever violates any provision of this section shall be punished by a fine of not less than twenty-five nor more than one hundred dollars, and each day of failure to keep such records or to furnish such copies thereof, upon demand, to the commissioner or his authorized representative shall constitute a separate offence.
Chapter 149: Section 24E. Hindering investigation; refusal of information Section 24E. Whoever hinders or delays an inspector of the department, or a duly authorized representative of the commissioner, in the performance of his duties in the investigation of a complaint under any provision of sections twenty-four A to twenty-four J, inclusive, or who refuses to admit any such inspector or representative to any place necessary for him to enter in the performance of such duty, or whoever refuses to give such inspector or representative such information that he may require for the proper enforcement of any provision of said sections, shall be punished by a fine of not less than twenty-five nor more than two hundred dollars.
Chapter 149: Section 24F. Discharge of employee for furnishing evidence or testifying Section 24F. Whoever, personally or by his agent, shall discharge an employee for the reason that such employee has furnished evidence in connection with a complaint under any provision of said sections twenty-four A to twenty-four J, inclusive, or that such employee has testified in a judicial proceeding under any such provision, shall be punished by a fine of not less than fifty nor more than two hundred dollars.
Chapter 149: Section 24G. Publication of name of employer; summons to show cause; liability for damages Section 24G. If the commissioner or any of his authorized representatives has reason to believe that any employer has dismissed from private sector employment or has refused to employ any person over the age of forty because of his age, except as permitted by subsection 17 of section 4 of chapter one hundred and fifty-one B, the commissioner may, on ten days’ notice, summon such employer to appear before him to show cause why the name of such employer should not be published as having failed to observe the provisions of sections twenty-four A to twenty-four J, inclusive. After such hearing and the finding by the commissioner of nonobservance of the provisions of said sections, the commissioner may cause to be published in a newspaper or newspapers circulating within the commonwealth or in such other manner as such commissioner may deem appropriate, the name of such employer as having failed to observe the provisions of said sections. Neither the commissioner nor any of his authorized representatives, nor any newspaper publisher, proprietor, editor, nor employee thereof shall be liable to an action for damages for publishing the name of any employer as provided for in this section, unless guilty of some wilful misrepresentation.
Chapter 149: Section 24H. Appeal from decision of commissioner Section 24H. Any person aggrieved by any decision of the commissioner under any provision of sections twenty-four A to twenty-four G, inclusive, may appeal to the superior court, for a review thereof within thirty days after the recommendation of such decision. Sections sixteen to twenty, inclusive, of chapter one hundred and fifty-one shall apply to and govern any such appeal.
Chapter 149: Section 24I. Farm labor Section 24I. Sections twenty-four A to twenty-four H, inclusive, shall not apply to persons employed in service as farm laborers.
Chapter 149: Section 24J. Partial invalidity Section 24J. If any part or subdivision of any of sections twenty-four A to twenty-four I, inclusive, or the application thereof, shall be held invalid, unconstitutional or inoperative as to any particular person, condition or circumstance, the remainder thereof, or the application of any such part or subdivision to any other person, condition or circumstance, shall not be affected thereby.
Chapter 149: Section 24K. Repealed, 1983, 533, Sec. 1 Chapter 149: Section 25. Lodging, board and trade of public employees; statute part of employment contract Section 25. Every employee in public work shall lodge, board and trade where and with whom he elects; and no person or his agents or employees under contract with the commonwealth, a county, city or town, or with a department, board, commission or officer acting therefor, for the doing of public work shall directly or indirectly require, as a condition of employment therein, that the employee shall lodge, board or trade at a particular place or with a particular person. This section shall be made a part of the contract for such employment.
Chapter 149: Section 26. Public works; preference to veterans and citizens; wages Section 26. In the employment of mechanics and apprentices, teamsters, chauffeurs and laborers in the construction of public works by the commonwealth, or by a county, town, authority or district, or by persons contracting or subcontracting for such works, preference shall first be given to citizens of the commonwealth who have been residents of the commonwealth for at least six months at the commencement of their employment who are male veterans as defined in clause Forty-third of section seven of chapter four, and who are qualified to perform the work to which the employment relates; and secondly, to citizens of the commonwealth generally who have been residents of the commonwealth for at least six months at the commencement of their employment, and if they cannot be obtained in sufficient numbers, then to citizens of the United States, and every contract for such work shall contain a provision to this effect. Each county, town or district in the construction of public works, or persons contracting or sub-contracting for such works, shall give preference to veterans and citizens who are residents of such county, town, authority or district. The rate per hour of the wages paid to said mechanics and apprentices, teamsters, chauffeurs and laborers in the construction of public works shall not be less than the rate or rates of wages to be determined by the commissioner as hereinafter provided; provided, that the wages paid to laborers employed on said works shall not be less than those paid to laborers in the municipal service of the town or towns where said works are being constructed; provided, further, that where the same public work is to be constructed in two or more towns, the wages paid to laborers shall not be less than those paid to laborers in the municipal service of the town paying the highest rate; provided, further, that if, in any of the towns where the works are to be constructed, a wage rate or wage rates have been established in certain trades and occupations by collective agreements or understandings in the private construction industry between organized labor and employers, the rate or rates to be paid on said works shall not be less than the rates so established; provided further, that in towns where no such rate or rates have been so established, the wages paid to mechanics, teamsters, chauffeurs and laborers on public works, shall not be less than the wages paid to the employees in the same trades and occupations by private employers engaged in the construction industry. This section shall also apply to regular employees of the commonwealth or of a county, town, authority or district, when such employees are employed in the construction, addition to or alteration of public buildings for which special appropriations of more than one thousand dollars are provided. Payments by employers to health and welfare plans, pension plans and supplementary unemployment benefit plans under collective bargaining agreements or understandings between organized labor and employers shall be included for the purpose of establishing minimum wage rates as herein provided.
Permanent and temporary laborers employed by the state department of highways and by the metropolitan district commission shall receive such salary or compensation as may be fixed under and in accordance with sections forty-five to fifty inclusive of chapter thirty.
Chapter 149: Section 27. List of jobs; classification; schedule of wages; penalty; civil action Section 27. The commissioner shall prepare, for the use of such public officials or public bodies whose duty it shall be to cause public works to be constructed, a list of the several jobs usually performed on various types of public works upon which mechanics and apprentices, teamsters, chauffeurs and laborers are employed, including the transportation of gravel or fill to the site of said public works or the removal of surplus gravel or fill from such site. The commissioner shall classify said jobs, and he may revise such classification from time to time, as he may deem advisable. Prior to awarding a contract for the construction of public works, said public official or public body shall submit to the commissioner a list of the jobs upon which mechanics and apprentices, teamsters, chauffeurs and laborers are to be employed, and shall request the commissioner to determine the rate of wages to be paid on each job. Said rates shall apply to all persons engaged in transporting gravel or fill to the site of said public works or removing gravel or fill from such site, regardless of whether such persons are employed by a contractor or subcontractor or are independent contractors or owner-operators. The commissioner, subject to the provisions of section twenty-six, shall proceed forthwith to determine the same, and shall furnish said official or public body with a schedule of such rate or rates of wages as soon as said determination shall have been made. In advertising or calling for bids for said works, the awarding official or public body shall incorporate said schedule in the advertisement or call for bids by an appropriate reference thereto, and shall furnish a copy of said schedule, without cost, to any person requesting the same. Said schedule shall be made a part of the contract for said works and shall continue to be the minimum rate or rates of wages for said employees during the life of the contract. Any person engaged in the construction of said works shall cause a legible copy of said schedule to be kept posted in a conspicuous place at the site of said works during the life of the contract. An apprentice performing work on a project subject to this section shall maintain in his possession an apprentice identification card issued pursuant to section 11W of chapter 23. The aforesaid rates of wages in the schedule of wage rates shall include payments by employers to health and welfare plans, pension plans and supplementary unemployment benefit plans as provided in said section twenty-six, and such payments shall be considered as payments to persons under this section performing work as herein provided. Any employer engaged in the construction of such works who does not make payments to a health and welfare plan, a pension plan and a supplementary unemployment benefit plan, where such payments are included in said rates of wages, shall pay the amount of said payments directly to each employee engaged in said construction. Whoever shall pay less than said rate or rates of wages, including payments to health and welfare funds and pension funds, or the equivalent payment in wages, on said works to any person performing work within classifications as determined by the commissioner, and whoever, for himself, or as representative, agent or officer of another, shall take or receive for his own use or the use of any other person, as a rebate, refund or gratuity, or in any other guise, any part or portion of the wages, including payments to health and welfare funds and pension funds, or the equivalent payment in wages, paid to any such person for work done or service rendered on said public works, shall have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C. The president and treasurer of a corporation and any officers or agents having the management of such corporation shall also be deemed to be employers of the employees of any corporation within the meaning of sections 26 to 27B, inclusive.
Offers of restitution or payment of restitution shall not be considered in imposing such punishment.
When an investigation by the attorney general’s office reveals that a contractor or subcontractor has violated this section by failing to pay said rate or rates of wages, including payments to health and welfare funds and pension funds, or the equivalent payment in wages, on said works to any person performing work within classifications as determined by the commissioner, or that a contractor or subcontractor has, for himself, or as representative, agent or officer of another, taken or received for his own use or the use of any other person, as a rebate, refund or gratuity, or in any other guise, any portion of the wages, including payments to health and welfare funds and pension funds, or the equivalent payment in wages, paid to any such person for work done or service rendered on said public works, the attorney general may, upon written notice to the contractor or subcontractor and the sureties of the contractor or subcontractor, and after a hearing thereon, order work halted on the part of the contract on which such wage violations occurred, until the defaulting contractor or subcontractor has filed with the attorney general’s office a bond in the amount of such penal sum as the attorney general shall determine, conditioned upon payment of said rate or rates of wages, including payments to health and welfare funds and pension funds, or the equivalent payment in wages, on said works to any person performing work within classifications as determined by the commissioner.
Any employee claiming to be aggrieved by a violation of this section may, at the expiration of ninety days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, and within three years of such violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief and any damages incurred, including treble damages for any loss of wages and other benefits. Any employee so aggrieved and who prevails in such an action shall be entitled to an award of the costs of the litigation and reasonable attorneys’ fees.
Chapter 149: Section 27A. Appeals from classifications and wage determinations Section 27A. Within five days from the date of the first advertisement or call for bids, two or more employers of labor, or two or more members of a labor organization, or the awarding officer or official, or five or more residents of the town or towns where the public works are to be constructed, may appeal to the commissioner or his designee from a wage determination, or a classification of employment as made by the commissioner, by serving on the commissioner a written notice to that effect. Thereupon the commissioner or his designee shall immediately hold a public hearing on the action appealed from. The commissioner or his designee shall render his decision not later than three days after the closing of the hearing. The decision of the commissioner or his designee shall be final and notice thereof shall be given forthwith to the awarding official or public body.
Chapter 149: Section 27B. Records of employees; payroll records; statements of compliance Section 27B. Every contractor, subcontractor or public body engaged in said public works to which sections twenty-seven and twenty-seven A apply shall keep a true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee, and shall promptly furnish to the attorney general or his representative, upon his request, a copy of said record, signed by the employer or his authorized agent under the penalties of perjury. For every week in which an apprentice is employed by a contractor, subcontractor or public body subject to this section, a photocopy of the apprentice’s apprentice identification card, issued pursuant to section 11W of chapter 23, shall be attached to the records submitted under this section. Such records shall be open to inspection by any authorized representative of the department at any reasonable time, and as often as may be necessary. Every contractor and subcontractor required to keep such a record shall submit a copy of said record to the awarding authority directly on a weekly basis.
Each such contractor, subcontractor or public body shall preserve its payroll records for a period of three years from the date of completion of the contract.
Each such contractor, subcontractor or public body shall furnish to the awarding authority directly within fifteen days after completion of its portion of the work a statement, executed by the contractor, subcontractor or public body or by any authorized officer or employee of the contractor, subcontractor or public body who supervises the payment of wages, in the following form:The above-mentioned copies of payroll records and statements of compliance shall be available for inspection by any interested party filing a written request to the awarding authority for such inspection and copying.
Chapter 149: Section 27C. Penalties for violations of certain sections by employers, contractors, subcontractors or their employees Section 27C. (a)(1) Any employer, contractor or subcontractor, or any officer, agent, superintendent, foreman, or employee thereof, or staffing agency or work site employer who willfully violates any provision of section 26, 27, 27A, 27B, 27F, 27G, 27H, 148, 148A, 148B or 159C or section 1A, 1B or 19 of chapter 151, shall be punished by a fine of not more than $25,000 or by imprisonment for not more than one year for a first offense, or by both such fine and imprisonment and for a subsequent willful offense a fine of not more than $50,000, or by imprisonment for not more than two years, or by both such fine and such imprisonment.
(2) Any employer, contractor or subcontractor, or any officer, agent, superintendent, foreman or employee thereof, or staffing agency or work site employer who without a willful intent to do so, violates any provision of section 26, 27, 27A, 27B, 27F, 27G, 27H, 148, 148A, 148B or 159C or section 1A, 1B or 19 of chapter 151, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than six months for a first offense, and for a subsequent offense by a fine of not more than $25,000 or by imprisonment for not more than one year, or by both such fine and such imprisonment. A complaint or indictment hereunder or under the provisions of the first paragraph may be sought either in the county where the work was performed or in the county where the employer, contractor, or subcontractor has a principal place of business. In the case of an employer, contractor, or subcontractor who has his principal place of business outside the commonwealth, a complaint or indictment may be sought either in the county where the work was performed or in Suffolk county.
(3) Any contractor or subcontractor convicted of willfully violating any provision of section 26, 27, 27A, 27B, 27F, 27G, 27H or 148B shall, in addition to any criminal penalty imposed, be prohibited from contracting, directly or indirectly, with the commonwealth or any of its agencies or political subdivisions for the construction of any public building or other public works, or from performing any work on the same as a contractor or subcontractor, for a period of five years from the date of such conviction. Any contractor or subcontractor convicted of violating any provision of section 26, 27, 27A, 27B, 27F, 27G, 27H or 148B shall, in addition to any criminal penalty imposed, be prohibited from contracting, directly or indirectly, with the commonwealth or any of its agencies, authorities or political subdivisions for the construction of any public building or other public works or from performing any work on the same as a contractor or subcontractor, for a period not to exceed six months from the date of such conviction for a first offense and up to three years from the date of conviction for subsequent offense. After final conviction and disposition of a violation pursuant to this paragraph in any court, the clerk of said court shall send a notice of such conviction to the attorney general, who shall publish written notice to all departments and agencies of the commonwealth which contract for public construction and to the appropriate authorities of counties, authorities, cities and towns that such person is prohibited from contracting, directly or indirectly, with the commonwealth or any of its authorities or political subdivisions for the period of time required under this paragraph. The attorney general may take such action as may be necessary to enforce the provisions of this paragraph, and the superior court shall have jurisdiction to enjoin or invalidate any contract award made in violation of this paragraph.
(b)(1) As an alternative to initiating criminal proceedings pursuant to subsection (a), the attorney general may issue a written warning or a civil citation. For each violation, a separate citation may be issued requiring any or all of the following: that the infraction be rectified, that restitution be made to the aggrieved party, or that a civil penalty of not more than $25,000 for each violation be paid to the commonwealth, within 21 days of the date of issuance of such citation. For the purposes of this paragraph, each failure to pay an employee the appropriate rate or prevailing rate of pay for any pay period may be deemed a separate violation, and the pay period shall be a minimum of 40 hours unless such employee has worked fewer than 40 hours during that week.
(2) Notwithstanding the foregoing, the maximum civil penalty that may be imposed upon any employer, contractor or subcontractor, who has not previously been either criminally convicted of a violation of the provisions of this chapter or chapter 151 or issued a citation hereunder, shall be no more than $15,000, except that in instances in which the attorney general determines that the employer, contractor or subcontractor lacked specific intent to violate the provisions of this chapter or said chapter 151, the maximum civil penalty for such an employer, contractor or subcontractor who has not previously been either criminally convicted of a violation of the provisions of this chapter or said chapter 151 or issued a citation hereunder shall be not more than $7,500. In determining the amount of any civil penalty to be assessed hereunder, said attorney general shall take into consideration previous violations of this chapter or said chapter 151 by the employer, the intent by such employer to violate the provisions of this chapter or said chapter 151, the number of employees affected by the present violation or violations, the monetary extent of the alleged violations, and the total monetary amount of the public contract or payroll involved.
(3) In the case of a citation for violating any provision of section 26, 27, 27A, 27B, 27F, 27G, 27H or 148B, the attorney general may also order that a bond in an amount necessary to rectify the infraction and to ensure compliance with sections 26 to 27H, inclusive, and with other provisions of law, be filed with said attorney general, conditioned upon payment of said rate or rates of wages, including payments to health and welfare funds and pension funds, or the equivalent payment in wages, on said public works to any person performing work within classifications as determined by the commissioner. Upon any failure to comply with the requirements set forth in a citation, said attorney general may order the cessation of all or the relevant portion of the work on the project site. In addition, any contractor or subcontractor failing to comply with the requirements set forth in a citation or order, shall be prohibited from contracting, directly or indirectly, with the commonwealth or any of its agencies or political subdivisions for the construction of any public building or other public works, or from performing any work on the same as a contractor or subcontractor, for a period of one year from the date of issuance of such citation or order. Any contractor or subcontractor who receives three citations or orders occurring on three different occasions, each of which includes a finding of intent, within a three year period shall automatically be debarred for a period of two years from the date of issuance of the third such citation or order or a final court order, whichever is later. Any debarment hereunder shall also apply to all affiliates of the contractor or subcontractor, as well as any successor company or corporation that said attorney general, upon investigation, determines to not have a true independent existence apart from that of the violating contractor or subcontractor.
(4) Any person aggrieved by any citation or order issued pursuant to this subsection may appeal said citation or order by filing a notice of appeal with the attorney general and the division of administrative law appeals within ten days of the receipt of the citation or order. Any such appellant shall be granted a hearing before the division of administrative law appeals in accordance with chapter 30A. The hearing officer may affirm or if the aggrieved person demonstrates by a preponderance of evidence that the citation or order was erroneously issued, vacate, or modify the citation or order. Any person aggrieved by a decision of the hearing officer may file an appeal in the superior court pursuant to the provisions of said chapter 30A.
(5) In cases when the decision of the hearing officer of the division of administrative law appeals is to debar or suspend the employer, said suspension or debarment shall not take effect until 30 days after the issuance of such order; provided, however, that the employer shall not bid on the construction of any public work or building during the aforementioned 30 day period unless the superior court temporarily enjoins the order of debarment or suspension.
(6) If any person shall fail to comply with the requirements set forth in any order or citation issued by the attorney general hereunder, or shall fail to pay any civil penalty or restitution imposed thereby within 21 days of the date of issuance of such citation or order or within 30 days following the decision of the hearing officer if such citation or order has been appealed, excluding any time during which judicial review of the hearing officer’s decision remains pending, said attorney general may apply for a criminal complaint or seek indictment for the violation of the appropriate section of this chapter.
(7) Notwithstanding the provisions of paragraph (6), if any civil penalty imposed by a citation or order issued by the attorney general remains unpaid beyond the time period specified for payment in said paragraph (6), such penalty amount and any restitution order, together with interest thereon at the rate of 18 per cent per annum, shall be a lien upon the real estate and personal property of the person who has failed to pay such penalty. Such lien shall take effect by operation of law on the day immediately following the due date for payment of such fine, and, unless dissolved by payment, shall as of said date be considered a tax due and owing to the commonwealth, which may be collected through the procedures provided for by chapter 62C. In addition to the foregoing, no officer of any corporation which has failed to pay any such penalty may incorporate or serve as an officer in any corporation which did not have a legal existence as of the date said fine became due and owing to the commonwealth.
(c) Civil and criminal penalties pursuant to this section shall apply to employers solely with respect to their wage and benefit obligations to their own employees.
Chapter 149: Section 27D. “Construction” and “constructed” defined Section 27D. Wherever used in sections twenty-six to twenty-seven C, inclusive, the words “construction” and “constructed” as applied to public buildings and public works shall include additions to and alterations of public works, the installation of resilient flooring in, and the painting of, public buildings and public works; certain work done preliminary to the construction of public works, namely, soil explorations, test borings and demolition of structures incidental to site clearance and right of way clearance; and the demolition of any building or other structure ordered by a public authority for the preservation of public health or public safety.
Chapter 149: Section 27E. Employment of residents in highway districts Section 27E. At least seventy-five per cent of the persons employed by the department of highways to work in connection with the construction, reconstruction, alteration or repair of any public works, in positions other than those subject to the civil service laws and rules and regulations, shall be residents in the highway district, as then established by said department or its successor in office, in which the work is being done.
Chapter 149: Section 27F. Wages of operators of rented equipment; agreements; penalty; civil action Section 27F. No agreement of lease, rental or other arrangement, and no order or requisition under which a truck or any automotive or other vehicle or equipment is to be engaged in public works by the commonwealth or by a county, city, town or district, shall be entered into or given by any public official or public body unless said agreement, order or requisition contains a stipulation requiring prescribed rates of wages, as determined by the commissioner, to be paid to the operators of said trucks, vehicles or equipment. Any such agreement, order or requisition which does not contain said stipulation shall be invalid, and no payment shall be made thereunder. Said rates of wages shall be requested of said commissioner by said public official or public body, and shall be furnished by the commissioner in a schedule containing the classifications of jobs, and the rate of wages to be paid for each job. Said rates of wages shall include payments to health and welfare plans, or, if no such plan is in effect between employers and employees, the amount of such payments shall be paid directly to said operators.
Whoever pays less than said rates of wages, including payments to health and welfare funds, or the equivalent in wages, on said works, and whoever accepts for his own use, or for the use of any other person, as a rebate, gratuity or in any other guise, any part or portion of said wages or health and welfare funds, shall have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C.
Any employee claiming to be aggrieved by a violation of this section may, at the expiration of ninety days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, and within three years of such violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief and any damages incurred, including treble damages for any loss of wages and other benefits. Any employee so aggrieved and who prevails in such an action shall be entitled to an award of the costs of the litigation and reasonable attorneys’ fees.
Chapter 149: Section 27G. Wages of employees of moving contractors; contracts; injunctive relief; damages Section 27G. No contract for the moving of office furniture and fixtures shall be entered into or given by the commonwealth or by a county, city, town or district unless said contract contains a stipulation requiring prescribed rates of wages, as determined by the commissioner, to be paid to the employees of a moving contractor. Any such contract which does not contain said stipulation shall be invalid, and no payment shall be made thereunder. Said rates of wages shall be requested of the commissioner by the commonwealth or by a county, city, town or district, and shall be furnished by the commissioner in a schedule containing the classifications of jobs and the rate of wages to be paid for each job. Said rates of wages shall include payments to health and welfare plans, or, if no such plan is in effect between employers and employees, the amount of such payments shall be paid directly to said employees.
Any employee claiming to be aggrieved by a violation of this section may, at the expiration of ninety days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, and within three years of such violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief and any damages incurred, including treble damages for any loss of wages and other benefits. Any employee so aggrieved and who prevails in such an action shall be entitled to an award of the costs of the litigation and reasonable attorneys’ fees.
Chapter 149: Section 27H. Wages of employees of maintenance or cleaning contractors; contracts; civil action Section 27H. No agreement or contract providing for the cleaning and maintenance of public buildings or space rented by the commonwealth, shall be entered into or given by the commonwealth unless said contract or agreement contains a stipulation requiring prescribed rates of wages, as determined by the commissioners, to be paid to the employees of the maintenance or cleaning contractor. Any such contract which does not contain said stipulation shall be invalid, and no payment shall be made thereunder. Said rates of wages shall be requested of the commissioner, and shall be furnished by the commissioner in a schedule containing the classifications of jobs and rate of wages to be paid for each job. Said rates of wages shall include payments to health and welfare plans and pension plans, or, if no such plan is in effect between employers and employees, the amount of such payments shall be paid directly to said employees. Whoever pays less than said rates of wages, including payments to health and welfare funds and pension funds, or the equivalent in wages, on said works, and whoever accepts for his own use, or for the use of any other person as a rebate, gratuity or in any other guise, any part or portion of said wages, health and welfare funds or pension funds, shall have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C.
Any employee claiming to be aggrieved by a violation of this section may, at the expiration of ninety days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, and within three years of such violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief and any damages incurred, including treble damages for any loss of wages and other benefits. Any employee so aggrieved and who prevails in such an action shall be entitled to an award of the costs of the litigation and reasonable attorneys’ fees.
Chapter 149: Section 28. Right of action against city or town for labor; filing statement; fee; limitations Section 28. A person to whom a debt is due for labor performed in constructing a building, sewer or drain, or water works or other public works owned by a city or town, under a contract with any person having authority from or rightfully acting for such city or town in furnishing such labor, shall have a right of action against such city or town to recover such debt if, within thirty days after he ceases to perform such labor, he files in the clerk’s office of the city or town against which he claims such right of action a written statement under oath of the amount of the debt so due to him, and the names of the persons for whom and by whose employment the labor was performed and pays to the said clerk the fee provided by clause (61) of section thirty-four of chapter two hundred and sixty-two, and if, within sixty days after he ceases to perform such labor, he commences such action. Such right of action shall not be lost by reason of a mistake in stating the amount due; but the claimant shall not recover as damages a larger amount than is named in such statement as due to him, with interest. No person who has contracted to furnish labor other than his own in such construction shall have such right of action.
Chapter 149: Section 29. Bonds for payment for labor, materials, rentals or transportation charges; enforcement of claim; notice of claim; speedy trial, appeal, consolidation; dismissal; legal fees; posting statute Section 29. Officers or agents contracting in behalf of the commonwealth or in behalf of any county, city, town, district or other political subdivision of the commonwealth or other public instrumentality for the construction, reconstruction, alteration, remodeling, repair or demolition of public buildings or other public works when the amount of the contract in the case of the commonwealth is more than five thousand dollars, and in any other case is more than two thousand dollars, shall obtain security by bond in an amount not less than one half of the total contract price, for payment by the contractor and subcontractors for labor performed or furnished and materials used or employed therein, including lumber so employed which is not incorporated therein and is not wholly or necessarily consumed or made so worthless as to lose its identity, but only to the extent of its purchase price less its fair salvage value, and including also any material specially fabricated at the order of the contractor or subcontractor for use as a component part of said public building or other public work so as to be unsuitable for use elsewhere, even though such material has not been delivered and incorporated into the public building or public work, but only to the extent of its purchase price less its fair salvage value and only to the extent that such specially fabricated material is in conformity with the contract, plans and specifications or any changes therein duly made; for payment of transportation charges for materials used or employed therein which are consigned to the contractor or to a subcontractor who has a direct contractual relationship with the contractor; for payment by such contractor and subcontractors of any sums due for the rental or hire of vehicles, steam shovels, rollers propelled by steam or other power, concrete mixers, tools and other appliances and equipment employed in such construction, reconstruction, alteration, remodeling, repair or demolition; for payment of transportation charges directly related to such rental or hire; and for payment by such contractor and subcontractors of any sums due trustees or other persons authorized to collect such payments from the contractor or subcontractors, based upon the labor performed or furnished as aforesaid, for health and welfare plans, supplementary unemployment benefit plans and other fringe benefits which are payable in cash and provided for in collective bargaining agreements between organized labor and the contractor or subcontractors; provided, that any such trustees or other persons authorized to collect such payments for health and welfare plans, supplementary unemployment benefit plans and other fringe benefits shall, subject to the following provisions, be entitled to the benefit of the security only in an amount based upon labor performed or furnished as aforesaid for a maximum of two hundred and forty consecutive calendar days.
In order to obtain the benefit of such bond for any amount claimed due and unpaid at any time, any claimant having a contractual relationship with the contractor principal furnishing the bond, who has not been paid in full for any amount claimed due for the labor, materials, equipment, appliances or transportation included in the paragraph (1) coverage within sixty-five days after the due date for same, shall have the right to enforce any such claim (a) by filing a petition in equity within one year after the day on which such claimant last performed the labor or furnished the labor, materials, equipment, appliances or transportation included in the claim and (b) by prosecuting the claim thereafter by trial in the superior court to final adjudication and execution for the sums justly due the claimant as provided in this section.
Any claimant having a contractual relationship with a subcontractor performing labor or both performing labor and furnishing materials pursuant to a contract with the general contractor but no contractual relationship with the contractor principal furnishing the bond shall have the right to enforce any such claim as provided in subparagraphs (a) and (b) of paragraph (2) only if such claimant gives written notice to the contractor principal within sixty-five days after the day on which the claimant last performed the labor or furnished the labor, materials, equipment, appliances or transportation included in the paragraphs (1) coverage, stating with substantial accuracy the amount claimed, the name of the party for whom such labor was performed or such labor, materials, equipment, appliances or transportation were furnished; provided, that any such claimant shall have the right to enforce any part of a claim covering specially fabricated material included in the paragraph (1) coverage only if such claimant has given the contractor principal written notice of the placement of the order and the amount thereof not later than twenty days after receiving the final approval in writing for the use of the material. The notices provided for in this paragraph (3) shall be served by mailing the same by registered or certified mail postage prepaid in an envelope addressed to the contractor principal at any place at which the contractor principal maintains an office or conducts his business, or at the contractor principal’s residence, or in any manner in which civil process may be served.
Upon motion of any party, the court shall advance for speedy trial a petition to enforce a claim pursuant to this section. Sections fifty-nine and fifty-nine B of chapter two hundred thirty-one shall apply to petitions to enforce claims pursuant to this section. The court shall enter an interlocutory decree upon which execution shall issue for any part of a claim found due pursuant to said sections fifty-nine or fifty-nine B and shall, upon motion of any party, advance for speedy trial the petition to enforce the remainder of the claim. Any party aggrieved by such interlocutory decree shall have the right to appeal therefrom as from a final decree. The court shall not consolidate for trial the petition of any claimant under this section with the petition of one or more other claimants on the same bond, unless the court finds that a substantial portion of the evidence of the same events during the course of construction (other than the fact that the claims sought to be consolidated arise under the same general contract) is applicable to the petitions sought to be consolidated, and that such consolidation will prevent unnecessary duplication of evidence.
The court shall not dismiss any petition on the ground that it was filed before the sixty-fifth day after the day the claimant last performed the labor or furnished the labor, materials, equipment, appliances or transportation included in the claim, nor shall the court dismiss any petition on the ground that a claim involves more than one contract with the same party and that the one year period has elapsed as to any one contract; provided, that the court shall not enter a decree upon any claim or part thereof prior to the seventieth day after the day the claimant last performed the labor or furnished the labor, materials, equipment, appliances or transportation included in the claim.
A decree in favor of any claimant under this section shall include reasonable legal fees based upon the time spent and the results accomplished as approved by the court and such legal fees shall not in any event be less than published rate of any recommenced fee schedule of a state-wide bar association or of a bar association in which the office of counsel for claimant is located, whichever is higher.
Any person employing persons on any public works hereinbefore referred to shall post conspicuously, at such place or places as will provide reasonable opportunity for all employees to read the same, a correct copy of this section. The attorney general shall enforce this paragraph.
Chapter 149: Section 29A. Enforcement of surety bonds by persons furnishing labor or materials on private building projects Section 29A. Whenever any surety bond shall be given in connection with any written contract for the erection, alteration, repair or removal of any private building or structure upon privately owned land, containing a condition for the payment of all labor and material used or reasonably required for use in the performance of the contract, any person who furnishes such labor or materials shall be entitled to sue for his own use and benefit upon such bond in accordance with its provisions and need not prove that he relied upon the bond in furnishing labor or material.
Chapter 149: Section 29B. Waiver or cancellation of payment bond Section 29B. No provision in specifications inviting bids for construction work reserving the right to waive or cancel the requirement for furnishing a payment bond shall be valid as a defense against a claimant who relied upon the provision requiring the furnishing of the payment bond unless that reservation appears in the specifications immediately following the provision requiring the furnishing of the payment bond.
Chapter 149: Section 29C. Indemnification as part of contract Section 29C. Any provision for or in connection with a contract for construction, reconstruction, installation, alteration, remodeling, repair, demolition or maintenance work, including without limitation, excavation, backfilling or grading, on any building or structure, whether underground or above ground, or on any real property, including without limitation any road, bridge, tunnel, sewer, water or other utility line, which requires a subcontractor to indemnify any party for injury to persons or damage to property not caused by the subcontractor or its employees, agents or subcontractors, shall be void.
Chapter 149: Section 29D. Surety company; bonds Section 29D. Every bid bond, every performance bond and every payment bond issued for any construction work in the commonwealth shall be the bond of a surety company organized pursuant to section 105 of chapter 175 or of a surety company authorized to do business in the commonwealth under the provisions of section 106 of said chapter 175 and be approved by the U.
S. Department of Treasury and are acceptable as sureties and reinsurers on federal bonds under Title 31 of the United States Code, sections 9304 to 9308.
Chapter 149: Section 3. Inspections and investigations Section 3. The inspection and investigation carried on by the attorney general shall be a regular and systematic inspection and investigation of all places of employment, other than places of employment of persons engaged in domestic service in the home of the employer, and the conditions of safety and health pertaining thereto.
Chapter 149: Section 30. Eight hour day and six day week; emergencies; work on highways Section 30. The service of all laborers, workmen, mechanics, foremen and inspectors now or hereafter employed by the commonwealth or any county therein or any town which, by vote of the city council, or of the voters at a town meeting, accepts this section or has accepted section one of chapter two hundred and forty of the General Acts of nineteen hundred and sixteen, or by any contractor or sub-contractor for or upon any public works of the commonwealth or of any county therein or of any such town is hereby restricted to eight hours in any one day, to forty-eight hours in any one week, and to six days in any one week. No officers of the commonwealth, except as provided herein, or of any county or of any such town, no such contractor or sub-contractor or other person whose duty it is to employ, direct or control the service of such laborers, workmen, mechanics, foremen or inspectors shall require or permit any such laborer, workman, mechanic, foreman or inspector to work more than eight hours in any one day, or more than forty-eight hours in any one week, or more than six days in any one week, except in cases of emergency. The provisions of this section shall not prohibit the employment by the state department of highways, or by any contractor or sub-contractor for said department, of laborers, workmen, mechanics, foremen or inspectors for more than eight hours in any one day in the construction or reconstruction of highways when, in the opinion of the attorney general, public necessity so requires.
Chapter 149: Section 30A. Tours of duty and hours of work of state employees; regulations Section 30A. Notwithstanding any other provision of this chapter or other general or special law, the service of all persons employed by the commonwealth is hereby restricted to five tours of duty in any one work week, and to such hours in any one work week, not less than thirty-seven and one half hours, except in the case of part-time employment, nor more than forty hours, and with like hours for like tour of duty classes, as determined by the personnel administrator, in accordance with section forty-five of chapter thirty, and the tour of duty is hereby restricted to eight hours, and such tour of duty shall be arranged to fall within a period not exceeding ten consecutive hours; provided, that this section shall not apply to the state police uniformed force and detectives, conservation officers, coastal wardens, employees engaged in forest fire observation, investigators and examiners and other employees of the registry of motor vehicles having police powers under section twenty-nine of chapter ninety, labor relations examiners, teachers, armorers, elected officers, appointees of the governor, heads of departments and divisions and their deputies and assistants, confidential secretaries, scrub women, cleaners or incumbents of the positions of superintendents, assistant superintendents, wardens, deputy wardens, stewards, physicians, dentists, head farmers, business managers, chief power plant engineers at mental health, mental retardation, public health, public welfare and correction institutions, soldiers’ homes in Massachusetts and agencies under the jurisdiction of the department of youth services; the manager of the boarding hall at the University of Massachusetts; the adjutant or assistant adjutants, directors of engineering services and directors of business services of the soldiers’ homes in Massachusetts; the construction and maintenance supervisor at the reformatory for women; the state farm master at the state farm; and such other employees as may be exempted therefrom or any part thereof by a rule or rules of the personnel administrator. Said administrator is empowered to make rules and regulations, subject to the approval of the commissioner of administration, to carry out the provisions of this section.
Chapter 149: Section 30B. Overtime of state employees; regulations Section 30B. All service in excess of eight hours in any one tour of duty or forty hours in any one work week rendered by any employee of the commonwealth at the request of an officer of the commonwealth or other person whose duty it is to employ, direct or control such employee, except the state police uniformed force and detectives, fire prevention engineer, boatswain coastal patrol boat, captain coastal patrol boat, coastal warden coastal patrol boat, coastal warden engineer coastal patrol boat, industrial relations adjuster, labor relations examiners, teachers, armorers, elected officers, appointees of the governor, heads of departments and divisions and their deputies and assistants, confidential secretaries, incumbents of the positions of superintendents, assistant superintendents, deputy superintendents, stewards, physicians, dentists, head farmers, business manager, institutions chief power plant engineers at mental health, mental retardation, public health, correctional institutions, soldiers’ homes in Massachusetts and agencies under the jurisdiction of the department of youth services, the manager of the boarding hall at the University of Massachusetts, the adjutants of the soldiers’ homes in Massachusetts, and any employees while on full travel status, shall be compensated for at the rate of one and one half times the regular hourly rate of said employee for every hour or fraction thereof of such services rendered. The personnel administrator is empowered to make rules and regulations, subject to the approval of the commissioner of administration, to carry out the provisions of this section.
Chapter 149: Section 30C. Work week of uniformed members of state police; overtime service; compensation; rules and regulations Section 30C. The service of all members of the uniformed members of the state police and land based environmental police officers of the division of law enforcement shall consist of an average of forty hours per week over a period of one or more work weeks not in excess of eight, as determined by the commissioner of the department in which they are respectively serving, and shall be restricted to not more than five normal work days, as so determined, in any consecutive seven-day period; provided, however, that all services in excess of the normal work day, as so determined, or in excess of forty hours per week, as so averaged, rendered by any such officer at the request of the commissioner of the department in which he is serving, shall be compensated for at the rate of one and one half times the regular hourly rate of such officer for every hour or fraction thereof of such services rendered.
The personnel administrator is empowered to make rules and regulations, subject to the approval of the commissioner of administration, to carry out the provisions of this section.
Chapter 149: Section 31. Eight hour day for towns and public works for towns; emergencies; acceptance of statute relating to employees of commonwealth Section 31. The service of all laborers, workmen and mechanics now or hereafter employed by any town which has accepted section twenty of chapter one hundred and six of the Revised Laws, or section forty-two of chapter five hundred and fourteen of the acts of nineteen hundred and nine, or said section forty-two, as affected by chapter four hundred and ninety-four of the acts of nineteen hundred and eleven, and which has not accepted section one of chapter two hundred and forty of the General Acts of nineteen hundred and sixteen, or by any contractor or sub-contractor for or upon any public works of any such town, is hereby restricted to eight hours in any one day. No officer of any such town, no such contractor or sub-contractor or other person whose duty it is to employ, direct or control the service of such laborers, workmen or mechanics shall require or permit any such laborer, workman or mechanic to work more than eight hours in any one day, except in cases of extraordinary emergency. But any such town may accept the preceding section and shall thereupon become subject thereto.
Chapter 149: Section 32. Scope of words “laborers, workmen and mechanics” and “requiring” Section 32. In construing sections thirty, thirty-one, thirty-three and thirty-four the words “laborers, workmen and mechanics” shall be deemed to include engineers and also janitors, custodians and other employees doing similar work in schools or other public buildings under the jurisdiction of any department, commission or board of the commonwealth or of any county, city or town, and a threat of loss of employment or a threat to obstruct or prevent the obtaining of employment or to refrain from employing in the future shall be considered to be “requiring” within the meaning of sections thirty, thirty-one and thirty-four.
Chapter 149: Section 33. Hours of labor to make up Saturday half holiday Section 33. It shall not be a violation of section thirty or thirty-one if, in the event of a Saturday half holiday being given to a laborer, workman or mechanic, his hours of labor upon other working days are increased sufficiently to make a total of forty-eight hours for his week’s work.
Chapter 149: Section 33A. Five day and forty hour week for cities and towns; emergencies; overtime; reduction of compensation Section 33A. Except as otherwise provided in this section and notwithstanding any other provision of general or special law, the service of all persons employed by every city in which this section has been accepted in the manner provided in earlier provisions thereof, or shall be accepted, in the case of cities having a Plan E charter, by the affirmative vote of two thirds of all the members of the city council, and, in the case of other cities by vote of the city council, subject to the provisions of the charter, and in every town in which it has been or shall be accepted by vote of the town at an annual town meeting, shall be restricted to five days and forty hours in any one week; provided, that, in cases of emergency, when the mayor or a city official designated by him, the city manager in cities having a Plan E charter, or a city official designated by him, and the board of selectmen or a town official designated by them, determines that public necessity so requires, which determination shall be final and conclusive, service in excess of the days and hours aforesaid may be authorized by an officer of such city or town or by any other person whose duty it is to employ, direct or control such employees, and such additional service shall be compensated for as overtime. This section shall not apply to policemen, firemen, school teachers, incumbents of offices specifically established by or under the authority of any general law or special act, or such other classes or groups of employees as from time to time may be specifically exempted therefrom in the manner provided for the acceptance of this section. The compensation payable to any employee shall not be reduced by reason of acceptance of this section.
Chapter 149: Section 33B. Five day week and eight hour day for cities and towns; overtime; reduction of compensation Section 33B. Except as otherwise provided in this section and notwithstanding any other provision of general or special law, the service of all persons employed by every city in which this section shall be accepted, in the case of cities having a Plan E charter, by the affirmative vote of two thirds of all the members of the city council, and, in the case of other cities by vote of the city council, subject to the provisions of its charter, and in every town in which it shall be accepted by vote of the town at an annual town meeting, shall be restricted to five days and forty hours in any one week, and eight hours in any one day, and said eight hours shall be arranged to fall within a period of not exceeding nine consecutive hours; provided, that service in excess of the days and hours aforesaid may be authorized by an officer of such city or town or by any other person whose duty it is to employ, direct or control such employees, and such additional service shall be compensated for as overtime. This section shall not apply to policemen, firemen, school teachers, incumbents of offices specifically established by or under the authority of any general law or special act, or such other classes or groups of employees as from time to time may be specifically exempted therefrom in the manner provided for the acceptance of this section. The compensation payable to any employee shall not be reduced by reason of acceptance of this section. The provisions of section thirty-three A shall not apply in any city or town which accepts this section.
Chapter 149: Section 33C. City and town employees; overtime; effective date Section 33C. Notwithstanding any other provision of general or special law, any permanent employee of a city or town who is required to work in excess of his regular number of maximum hours per week as regulated by law, ordinance or by-law or rule shall be compensated for such additional hours of service at a rate of one and one half times his regular hourly compensation. The provisions of sections thirty-three A and thirty-three B shall not apply in any city or town which accepts this section.
This section shall take effect upon its acceptance in a city having a Plan E charter, by the affirmative vote of two thirds of all the members of the city council, and, in any other city by vote of the city council, subject to the provisions of its charter, and in a town by majority vote at the annual town meeting.
Chapter 149: Section 33D. Blood donations; leave of absence without loss of pay Section 33D. Any employee of the commonwealth, of any county, and of any city or town which accepts the provisions of this section, shall be allowed a leave of absence without loss of pay of not more than eight hours in each calendar year for the purpose of donating platelets, plasma white cells or whole blood to any cancer research center.
Chapter 149: Section 34. Public contracts; stipulation as to hours and days of work; void contracts Section 34. Every contract, except for the purchase of material or supplies, involving the employment of laborers, workmen, mechanics, foremen or inspectors, to which the commonwealth or any county or any town, subject to section thirty, is a party, shall contain a stipulation that no laborer, workman, mechanic, foreman or inspector working within the commonwealth, in the employ of the contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract, shall be required or permitted to work more than eight hours in any one day or more than forty-eight hours in any one week, or more than six days in any one week, except in cases of emergency, or, in case any town subject to section thirty-one is a party to such a contract, more than eight hours in any one day, except as aforesaid; provided, that in contracts entered into by the department of highways for the construction or reconstruction of highways there may be inserted in said stipulation a provision that said department, or any contractor or sub-contractor for said department, may employ laborers, workmen, mechanics, foremen and inspectors for more than eight hours in any one day in such construction or reconstruction when, in the opinion of the commissioner of labor and industries, public necessity so requires. Every such contract not containing the aforesaid stipulation shall be null and void.
Chapter 149: Section 34A. Contracts for public works; workers’ compensation insurance; breach of contract; enforcement and violation of statute Section 34A. Every contract for the construction, alteration, maintenance, repair or demolition of, or addition to, any public building or other public works for the commonwealth or any political subdivision thereof shall contain stipulations requiring that the contractor shall, before commencing performance of such contract, provide by insurance for the payment of compensation and the furnishing of other benefits under chapter one hundred and fifty-two to all persons to be employed under the contract, and that the contractor shall continue such insurance in full force and effect during the term of the contract. No officer or agent contracting in behalf of the commonwealth or any political subdivision thereof shall award such a contract until he has been furnished with sufficient proof of compliance with the aforesaid stipulations. Failure to provide and continue in force such insurance as aforesaid shall be deemed a material breach of the contract and shall operate as an immediate termination thereof. No cancellation of such insurance, whether by the insurer or by the insured, shall be valid unless written notice thereof is given by the party proposing cancellation to the other party and to the officer or agent who awarded the contract at least fifteen days prior to the intended effective date thereof, which date shall be expressed in said notice. Notice of cancellation sent by the party proposing cancellation by registered mail, postage prepaid, with a return receipt of the addressee requested, shall be a sufficient notice. An affidavit of any officer, agent or employee of the insurer or of the insured, as the case may be, duly authorized for the purpose, that he has so sent such notice addressed as aforesaid shall be prima facie evidence of the sending thereof as aforesaid. This section shall apply to the legal representative, trustee in bankruptcy, receiver, assignee, trustee and the successor in interest of any such contractor. The superior court shall have jurisdiction in equity to enforce this section.
Whoever violates any provision of this section shall be punished by a fine of not more than one hundred dollars or by imprisonment for six months, or both; and, in addition, any contractor who violates any provision of this section shall be prohibited from contracting, directly or indirectly, with the commonwealth or any political subdivision thereof, for the construction, alteration, demolition, maintenance or repair of, or addition to, any public works or public building for a period of two years from the date of conviction of said violation.
Chapter 149: Section 34B. Contracts for public works; wages for reserve police officer Section 34B. Every contract for the construction, alteration, maintenance, repair or demolition of, or addition to, any public works for the commonwealth or any political subdivision thereof shall contain stipulations requiring that the contractor shall pay to any reserve police officer employed by him in any city or town the prevailing rate of wage paid to regular police officers in such city or town.
Chapter 149: Section 34C. Application of Secs. 30, 34 and 35 Section 34C. The provisions of sections thirty, thirty-four and thirty-five and of any other pertinent sections shall apply to the commonwealth or any city or town only to the extent that such application will not be inconsistent with the provisions of section thirty A or section thirty-three A.
Chapter 149: Section 35. Violation of Sec. 30, 31 or 34 Section 35. Any agent or official of the commonwealth or of any county, city or town, or any contractor or sub-contractor, or any agent or person acting on behalf of any contractor or sub-contractor, who violates section thirty, thirty-one or thirty-four shall be punished by a fine of not more than one thousand dollars or by imprisonment for six months, or both.
Chapter 149: Section 36. Nonapplicability of eight hour day and six day week statutes Section 36. Sections thirty, thirty-one and thirty-four shall not apply to the preparation, printing, shipment and delivery of ballots to be used at a caucus, primary, state, city or town election, and said sections and sections forty-eight and fifty-six shall not apply during the sessions of the general court to persons employed in legislative printing or binding; nor shall said sections thirty, thirty-one and thirty-four apply to persons employed in any state, county or municipal institution, on a farm, or in the care of the grounds, in the stable, in the domestic or kitchen and dining room service or in store rooms or offices, or to persons employed by the commissioners of the Massachusetts maritime academy, on boats maintained by the state police for the enforcement of certain laws in the waters of the commonwealth, or in connection with the care and maintenance of state armories, or to the purchase, operation or lease of farm machinery by the department of agriculture.
Chapter 149: Section 37. Nine hour day for towns Section 37. In any town not subject to section thirty or thirty-one nine hours shall constitute a day’s work for all laborers, workmen and mechanics employed by or on behalf of such town.
Chapter 149: Section 38. Annual vacation for employees of commonwealth Section 38. All laborers, workmen and mechanics permanently in the employ of the commonwealth who are within the provisions of section thirty as affected by sections thirty-two and thirty-six shall be entitled to an annual vacation of at least twelve working days with pay.
Chapter 149: Section 39. Hours of labor in institutions; employees with less hours under other statutes; emergencies Section 39. The maximum hours of labor of laborers, workmen and mechanics, of ward attendants, ward nurses, industrial and occupational therapists and watchmen, and of employees in kitchen, dining-room and domestic services, in state and county institutions, and of officers and instructors of state penal institutions and county penal and reformatory institutions, shall not exceed forty in each week. The foregoing provision shall not be construed as authorizing the employment of any such officer or employee whose work day and week is fixed under section thirty A or any other provision of law at less than said forty hours maximum to be employed beyond the hours so fixed and within said maximum without the payment of overtime. This section shall not prevent the superintendent, warden or executive officer from requiring the services of any person in any emergency where the health or safety of patients or inmates would otherwise be endangered, or in any extraordinary emergency, or in apprehending an escaped inmate.
Chapter 149: Section 4. Reports of diseases Section 4. The department shall promptly report to the department of public health all cases of disease in industrial establishments affecting the health of the community.
Chapter 149: Section 40. Repealed, 1954, 632, Sec. 2 Chapter 149: Section 41. Saturday half holiday for commonwealth Section 41. Except as provided in section sixty-five of chapter ninety-two, all laborers, workmen and mechanics employed by the commonwealth in any capacity, or by any officer, department or board on behalf of the commonwealth, who are permanent employees or who have been certified under the civil service laws, and whose services can be dispensed with, shall be given a half holiday on every Saturday in the year without loss of pay.
Chapter 149: Section 42. Work by employees of commonwealth on day work basis Section 42. So far as possible, all work by laborers, workmen and mechanics employed by the commonwealth or by any officer, department, board or commission on behalf of the commonwealth, shall be on the day work basis.
Chapter 149: Section 43. Nondiscrimination Section 43. The application of a citizen of the commonwealth for employment in any department of the commonwealth or of any political subdivision thereof or in any department of a street railway company, operated, owned, controlled or financially aided in any way by the commonwealth, or by any political subdivision thereof, shall not be affected by the applicant’s national origin, race or color.
Chapter 149: Section 44. Service by veterans on Memorial Day Section 44. No veteran, as defined in section one of chapter thirty-one, in the service of the commonwealth or of any county, city or town therein, except policemen and firemen and members of the department of public safety doing police duty, shall be required to perform any service on Memorial Day. Such veterans, if employed as policemen or firemen by any city or town, may be granted leave of absence without loss of pay on Memorial Day by the governing authorities in cities and towns.
Chapter 149: Section 44A1/2. Fair competition for bidders on construction Section 44A1/2. (a) A public agency, before entering into a contract for design services pursuant to section 38D or section 38K of chapter 7, shall contract for the services of an owner’s project manager to serve as the public agency’s agent and consultant during the planning, design and implementation of a contract for the construction, reconstruction, installation, demolition, maintenance or repair of any building by the public agency estimated to cost not less than $1,500,000. The duties of the owner’s project manager shall include, but need not be limited to, providing advice and consultation with respect to design, value engineering, scope of the work, cost estimating, general contractor and subcontractor prequalification, pursuant to section 44D 1/2 or 44D 3/4 when applicable, scheduling, construction and the selection, negotiation with and oversight of a designer and a general contractor for the project, ensuring the preparation of time schedules which shall serve as control standards for monitoring performance of the building project, and assisting in project evaluation including, but not limited to, written evaluations of the performance of the design professional, contractors, and subcontractors. For the purposes of this subsection, the term “owner’s project manager” shall mean an individual, corporation, partnership, sole proprietorship, joint stock company, joint venture, or other entity engaged in the practice of providing project management services for the construction and supervision of construction of buildings. The owner’s project manager shall be a person who is registered by the commonwealth as an architect or professional engineer and who has at least 5 years experience in the construction and supervision of construction of buildings or a person, if not registered as an architect or professional engineer, who has at least 7 years experience in the construction and supervision of construction of buildings. The owner’s project manager shall be independent of the designer, general contractor or any sub-contractor involved in the building project.
(b) Notwithstanding subsection (a), a public agency may assign an existing employee to serve as the owner’s project manager, if that employee meets or exceeds the minimum qualifications as outlined in subsection (a) and has experience in the construction and supervision of construction of buildings of similar size and scope of complexity as the project to which he is assigned.
(c) The public agency shall use a qualifications based selection process to procure the services of an owner’s project manager.
Chapter 149: Section 44A. Definitions; competitive bids; award; bonds; extreme emergency situations; records contracts not subjected to competitive bid process Section 44A. (1) The words defined in this section shall have the meaning set forth below whenever they appear in sections forty-four A through forty-four H, inclusive, of this chapter unless indicated otherwise or unless the context in which they are used clearly requires a different meaning.
“Commissioner”, means the commissioner of the division of capital asset management and maintenance or his designee.
“Public Agency” means a department, agency, board, commission, authority, or other instrumentality of the commonwealth or political subdivision of the commonwealth, or two or more subdivisions thereof but not including the Massachusetts Bay Transportation Authority;“Responsible” means demonstrably possessing the skill, ability and integrity necessary to faithfully perform the work called for by a particular contract, based upon a determination of competent workmanship and financial soundness in accordance with the provisions of section forty-four D of this chapter;“Eligible” means able to meet all requirements for bidders or offerors set forth in sections forty-four A through forty-four H of this chapter and not debarred from bidding under section forty-four C of this chapter or any other applicable law, and who shall certify that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work.
“Modular Building”, a pre-designed building or units of a pre-designed building assembled and equipped with internal plumbing, electrical or similar systems prior to movement to the site where such units are attached to each other and such building is affixed to a foundation and connected to external utilities; or any portable structure with walls, a floor, and a roof, designed or used for the shelter of persons or property, transportable in one or more sections and affixed to a foundation and connected to external utilities.
“Procurement”, buying, purchasing, or otherwise acquiring and installing a modular building, and all functions that pertain to the acquisition and installation of a modular building, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration.
“Proprietary environmental technology systems”, systems, in the town of Nantucket, including solid waste related equipment, supporting structures, and buildings, designed, manufactured, and produced under exclusive individual right to sell such product, pertaining to solid waste related environmental protection or remediation. Such systems shall include, but not be limited to, sequential, turnkey, construction management, design/build procurement, and the phasing of such procurement, including approval of design and construction stages as separate or combined phases.
(2)(A) Every contract for the construction, reconstruction, installation, demolition, maintenance or repair of any building by a public agency estimated to cost less than $10,000 shall be awarded to the responsible person offering to perform the contract at the lowest price quotation; provided, however, that the public agency shall seek written price quotations from no fewer than 3 persons customarily providing the work for which the contract is being made available. When seeking written quotations the public agency shall make and keep a record of the names and addresses of all persons from whom price quotations were sought, the names of the persons submitting price quotations and the date and amount of each price quotation.
(B) Every contract for the construction, reconstruction, installation, demolition, maintenance or repair of any building estimated to cost not less than $10,000 but not more than $25,000 shall be awarded to the responsible person offering to perform the contract at the lowest price. The public agency shall make public notification of the contract and shall seek written responses from persons who customarily perform such work. The public notification shall include a scope of work statement that defines the work to be performed and provides potential responders with sufficient information regarding the objectives and requirements of the public agency and the time period within which the work is to be completed. For purposes of this subsection “public notification” shall include, but not necessarily be limited to, posting, no less than 2 weeks before the time specified in the notification for the receipt of responses, the contract and scope of work statement on the website of the public agency, on the COMPASS system, so-called, or in the central register established under section 20A of chapter 9, and in a conspicuous place in or near the primary office of the public agency.
(C) Every contract for the construction, reconstruction, installation, demolition, maintenance or repair of any building by a public agency estimated to cost not less than $25,000 but not more than $100,000, except for a pumping station to be constructed as an integral part of a sewer construction or water construction project bid under the provisions of section 39M of chapter 30, shall be awarded to the lowest responsible and eligible bidder on the basis of competitive bids publicly opened and read in accordance with the procedure set forth in said section 39M of said chapter 30. The term “pumping station” as used in this section shall mean a building or other structure which houses solely pumps and appurtenant electrical and plumbing fixtures.
(D) Every contract for the construction, reconstruction, installation, demolition, maintenance or repair of any building by a public agency estimated to cost more than $100,000, except for a pumping station to be constructed as an integral part of a sewer construction or water construction project bid under the provisions of section 39M of chapter 30, shall be awarded to the lowest responsible and eligible general bidder on the basis of competitive bids in accordance with the procedure set forth in section 44A to 44H, inclusive.
(E) When the general court has approved the use of an alternative mode of procurement of construction for a project pursuant to section 7E of chapter 29, the awarding authority responsible for procuring construction services for the project shall follow the policies and procedures of this section and of section 44B to 44H, inclusive, to the extent compatible with the mode of construction procurement selected.
(F) Notwithstanding paragraph (E), a public agency may undertake the procurement of modular buildings, in accordance with section 44E. A public agency may procure site work for modular buildings, including but not limited to, construction of foundations, installations, and attachment to external utilities, or any portion of site work, either in combination with the procurement of modular buildings pursuant to section 44E or on the basis of competitive bids pursuant to the paragraph (E). Notwithstanding the paragraph (E), a public agency may procure energy management services in accordance with section 11C of chapter 25A and regulations promulgated thereunder.
(3) The award of every such contract in connection with which approval by an officer, board or agency of the federal government is required shall be made within thirty days, Saturdays, Sundays and legal holidays excluded, after such approval; and the award of every contract subject to this section in connection with which approval by an officer, board or agency of the federal government is not required shall be made within thirty days, Saturdays, Sundays and legal holidays excluded, after the opening of the bids therefor. If the bidder selected as the general contractor fails to perform his agreement to execute a contract in accordance with the terms of his bid and furnish a performance bond and also a labor and materials or payment bond as stated in his bid in accordance with section forty-four E, an award shall be made to the next lowest responsible and eligible bidder, subject to the provisions of sections forty-four A to forty-four H, inclusive, of this chapter. The thirty-day time limit shall not be applicable to a second or subsequent award made after expiration of the time limit with the consent of said next lowest responsible and eligible bidder, and made because the original award made within the time limit was invalid, or because the bidder failed to execute the contract or to provide a performance bond and labor and materials or payment bond.
(4) In cases of extreme emergency, the awarding authority may, with the prior approval of the commissioner, award a contract for that portion of the work necessary to preserve the health or safety of persons or property or to alleviate an imminent security threat on the basis of such competitive bids or proposals as it can obtain in time to care for the extreme emergency and without public opening of the bids or proposals.
Where the nature of the emergency prevents the awarding authority from obtaining the prior approval of the commissioner, the awarding authority may contract for the necessary work without said prior approval; provided, however, that the approval of the commissioner shall still be sought at the earliest possible time; and provided, further, that if the commissioner at that time fails to approve the emergency determination the awarding authority shall promptly cease all work for which the emergency determination was denied. In such cases, the contractor shall be entitled to payment for the fair value of the labor and materials furnished prior to cessation of the work.
The commissioner shall maintain a record of all contracts awarded pursuant to this subsection, containing a description of the circumstances and the reasons for the commissioner’s determination.
(5) (a) Notwithstanding the provisions of this section or any other general or special law to the contrary, a municipality may enter into a contract for proprietary environmental technology systems as defined in subsection (1) of this section without said contract being subject to the competitive bid process as set forth in sections thirty-eight A1/2 to thirty-eight O, inclusive, of chapter seven; this section and sections forty-four B to forty-four H, inclusive, of this chapter, and section thirty-nine M of chapter thirty; provided that the awarding authority meets the conditions set forth and receives the approvals required in paragraph (b) of this subsection.
(b) Prior to the issuance of any request for proposal with respect to the awarding of any contract pursuant to the provisions of paragraph (a) of this subsection, the awarding authority shall meet or obtain each of the following conditions or required approvals: (1) the municipality shall appoint qualified persons to conduct a thorough review of all available environmental technology, including both proprietary and non-proprietary environmental technology, and if the conclusion of this review is that a contract for proprietary environmental technology systems is in the public interest, such conclusion shall be supported by sound documented reasons in writing available for public inspection; (2) the city council, the board of selectmen, or the town meeting shall take a majority vote finding that it is in the public interest to enter into a contract for proprietary environmental technology systems, as defined in subsection (1) of this section, providing such vote is supported by the conclusion of the review conducted pursuant to condition (1); (3) both the attorney general and the commissioner of the department of environmental protection shall grant written approval; (4) said contract shall be subject to any limitation in the waiver of sections thirty-eight A1/2 to thirty-eight O, inclusive, of chapter seven, sections forty-four A to forty-four H of chapter one hundred and forty-nine, and section thirty-nine M of chapter thirty imposed by either the attorney general or the commissioner of the department of environmental protection as a condition for a grant of approval by said officers; and (5) every proprietary environmental technology systems contract shall be as compatible with sections thirty-eight A to thirty-eight O, inclusive, of chapter seven, sections forty-four A to forty-four H of chapter one hundred and forty-nine, and section thirty-nine M of chapter thirty as is feasible for the procurement of the proprietary environmental technology systems chosen.
Chapter 149: Section 44B. Plans and specifications; bid deposits Section 44B. (1) The awarding authority shall prepare for bidding purposes a sufficient number of sets of plans and specifications so that there will be available without cost or charge, except for a fully refundable deposit for return of the same in good condition, one complete set of specifications and plans drawn on a scale of not less than one-eighth inch to one foot except for site plans and which have not been mechanically reduced, for each person requesting the same.
The awarding authority shall prepare and update daily a list of persons who have requested a set of plans and specifications, indicating clearly which plans and specifications or pages thereof were requested. Such list shall be posted prominently at the office of the awarding authority and sent on a weekly basis to the central register published by the state secretary pursuant to section twenty of chapter nine, and such other publications as the commissioner designates.
(2) Every bid submitted for a contract subject to section forty-four A and every sub-bid submitted in connection with such a contract for a subtrade pursuant to section forty-four F shall be accompanied by a bid deposit in the form of a bid bond, or cash, or a certified check on, or a treasurer’s or cashier’s check issued by, a responsible bank or trust company, payable to the commonwealth or public agency in the name of which the contract for the work is to be executed. A bid bond shall be (a) in a form satisfactory to the awarding authority, (b) with a surety company qualified to do business in the commonwealth and satisfactory to the awarding authority and (c) conditioned upon the faithful performance by the principal of the agreements contained in the bid.
The amount of such bid deposit shall be five per cent of the value of the bid.
(3) All bid deposits of general bidders, except those of the three lowest responsible and eligible general bidders, shall be returned within five days, Saturdays, Sundays and legal holidays excluded, after the opening of the general bids. The bid deposits of the three lowest responsible and eligible general bidders shall be returned upon the execution and delivery of the general contract or, if no award is made, upon the expiration of the time prescribed in section forty-four A for making an award; except that, if any general bidder who fails to perform his agreement to execute a contract and furnish a performance bond and also a labor and materials or payment bond as stated in his bid in accordance with section forty-four E, his bid deposit shall become and be the property of the commonwealth or the public agency to which it is payable, as liquidated damages; provided that the amount of the bid deposit which becomes the property of the commonwealth or the public agency shall not, in any event, exceed the difference between his bid price and the bid price of the next lowest responsible and eligible bidder; and provided further that, in case of death, disability, bona fide clerical or mechanical error of a substantial nature, or other similar unforeseen circumstances affecting the general bidder, his bid deposit shall be returned to him.
(4) All bids deposits of sub-bidders, except (a) those of the sub-bidders named in the general bids of the three lowest responsible and eligible general bidders and (b) those of the three lowest responsible and eligible sub-bidders for each sub-trade, shall be returned within five days, Saturdays, Sundays and legal holidays excluded, after the opening of the general bids. The bid deposits of sub-bidders not returned pursuant to the preceding sentence shall be returned within 5 days, Saturdays, Sundays, and legal holidays excluded, after the execution of the general contract; except that, if a selected sub-bidder fails to perform his agreement to execute a sub-contract with the general bidder selected as the general contractor, contingent upon the execution of the general contract, and, if required to do so pursuant to the prequalification process under section 44D 3/4 or if requested to do so in the general bid by such general bidder, to furnish a performance and payment bond as stated in his sub-bid in accordance with subsection (2) of section 44F, the bid deposit of that sub-bidder shall become and be the property of the commonwealth or the governmental unit thereof to which it is payable, as liquidated damages; provided, that the amount of the bid deposit which becomes the property of the commonwealth or the governmental unit thereof shall not, in any event, exceed the difference between his sub-bid price and the sub-bid price of the next lowest responsible and eligible sub-bidder; and provided further that, in case of death, disability, bona fide clerical or mechanical error of a substantial nature, or other unforeseen circumstances affecting any such sub-bidder, his bid deposit shall be returned to him.
(5) In addition to the provisions for the return of bid deposits in the first sentence of subsection (3) and (4) upon a receipt of a bid bond in an amount not less than the amount of the required bid deposit, an awarding authority shall return any bid deposit of a bidder forthwith after public opening of bids. The bid bond shall be in an amount and in the form provided in subsection (2).
Chapter 149: Section 44C. Suspension or debarment of contractors Section 44C. The commissioner may suspend or debar contractors in accordance with the provisions of section twenty-nine F of chapter twenty-nine.
Chapter 149: Section 44D1/2. General contractor bids; prequalification procedures Section 44D1/2. (a) Notwithstanding section 44E, an awarding authority on contracts subject to section 44A and which are estimated to cost not less than $10,000,000 shall prequalify general contractors to submit general bids in accordance with the provisions of subsections (a) to (j), inclusive; provided, that on such contracts subject to section 44A and which are estimated to cost not less than $100,000 but not more than $10,000,000, an awarding authority may elect to prequalify general contractors to submit general bids in accordance with subsections (a) to (j), inclusive. When prequalifying general contractors, the awarding authority shall initiate said prequalification through the solicitation of responses to a request for qualifications pursuant to subsection (d) of this section.
(b)(1) Notwithstanding subsection (a), the division of capital asset management and maintenance, the Massachusetts Port Authority, the Massachusetts Water Resources Authority, the Massachusetts State Colleges Building Authority, and the University of Massachusetts Building Authority, hereinafter referred to as “exempt agencies”, shall not be subject to said subsection (a), but may elect to prequalify general contractors to submit general bids in accordance with the subsections (c) to (j), inclusive.
(2) For cases involving security sensitive information as defined by subclause (n) of clause Twenty-sixth of section 7 of chapter 4 and in order to maintain the confidentiality of security sensitive information, the awarding authority may, with prior approval of the commissioner, implement a prequalification process whereby the awarding authority selects a final list of a minimum of 3 general contractors who are eligible to submit bids and the awarding authority may award a contract to the lowest bidder amongst the final list of bidders. The commissioner of the division of capital asset management and maintenance shall promulgate regulations to implement this paragraph.
(c) Before issuing a request for qualifications, hereinafter referred to as RFQ, the awarding authority shall establish a prequalification committee for the purpose of reviewing and evaluating responses submitted in response to the RFQ issued pursuant to subsection (d). The prequalification committee shall be comprised of 1 representative of the designer and 3 representatives of the awarding authority. One of the representatives of the awarding authority shall be the owner’s project manager if an owner’s project manager is required on the building project pursuant to this section.
(d) When prequalifying general contractors, the awarding authority shall initiate the prequalification process through public notice of the building project and the solicitation of responses to the RFQ from general contractors. The public notice and solicitation shall include:(1) the time and date for receipt of responses to the RFQ, the address of the office to which the responses are to be delivered, and the timeframe in which the public agency will respond to said responses;(2) a general description of the project;(3) the evaluation procedure and the criteria for the prequalification of general contractors, including the point rating system, and the schedule for the evaluation process;(4) the anticipated schedule and estimated construction cost for the building project;(5) a listing of the project team including the awarding authority, the designer, and awarding authority’s owner’s project manager, if applicable;(6) a statement indicating that the RFQ will be used to prequalify general contractors who will be invited to submit a bid pursuant to section 44E;(7) a prohibition against any unauthorized communication or contact with the public agency outside of official pre-bid meetings; and if desired,(8) any limitation on the size and number of pages to be included in the response to the RFQ desired by the public agency.
(e) The awarding authority shall require interested general contractors to submit a statement of qualifications in response to the RFQ issued pursuant to subsection (d). The RFQ shall require only the information contained in paragraphs (1) to (4), inclusive, of this subsection, and shall identify the specific point allocation for each category and sub-category of information. Within each category of information, public agencies may use discretion in allocating points among the subcategories, consistent with the total points for the category.
(1) Management Experience (50 points; minimum of 25 required for approval) :—(i) Business owners, The name, title, years with firm of the owner(s) of the business.
(ii) Management personnel, The names, title, education and construction experience, years with firm, and list of projects completed by all management personnel.
(iii) Similar project experience, The project name(s), description, original contract sum, final contract sum with explanation, and date completed of similar projects.
(iv) Terminations, A list of any projects on which the firm was terminated or failed to complete the work.
(v) Legal proceedings, A list of all legal or administrative proceedings currently pending against the general contractor or concluded adversely to the general contractor within the past 5 years which relate to the procurement or performance of any public or private construction contract.
(vi) Safety record, The 3-year history of the firm’s workers’ compensation experience modifier.
(vii) Compliance Record, Information on and evidence of evidence of the firm’s compliance record with respect to minority business enterprise and women business enterprise inclusion goals and workforce inclusion goals, if applicable.
(2) References (30 points; minimum of 15 required for approval) :(i) project references, References from owners and architects for all projects listed in clause (iii) of paragraph (1), including project names and the names of the owners and architects, with address, telephone and fax number, and contact person for each.
(ii) Credit references, A minimum of 5 credit references, including the telephone and fax number of contact person from key suppliers, vendors and banks.
(iii) Public project record, A list of all completed public building construction project or projects as defined in section 44A during the past 3 years with owner’s name, address, telephone and fax number and contact person.
(3) Capacity to Complete Projects (20 points; minimum of 10 required for approval) :(i) Audited financial statement for the most recent fiscal year, provided that financial information submitted shall remain confidential and shall not be a public record under section 7 of chapter 4.
(ii) Revenue under contract for the next 3 fiscal years.
(4) Mandatory requirements, for which no points are assigned:(i) A commitment letter for payment and performance bonds at 100 per cent of the estimated contract value from a surety company licensed to do business in the commonwealth and whose name appears on United States Treasury Department Circular 570.
(ii) A certificate of eligibility issued by the division of capital asset management and maintenance pursuant to section 44D, showing a capacity rating sufficient for the project, and an update statement.
The statement of qualifications shall be signed under pains and penalties of perjury.
(f) The public notice and solicitation required in subsection (d) shall be advertised in a newspaper of general circulation in the area in which the building project is located, in the central register pursuant to section 20A of chapter 9, and within the COMPASS system, so-called. The public notice and solicitation shall be given not less than 2 weeks before the deadline for submitting responses to the RFQ.
(g) The awarding authority shall not open the statement of qualifications publicly, but shall open them in the presence of 1 or more witnesses at the time specified in the RFQ. At the opening of responses, the awarding authority shall prepare a register of responders which shall include the name of each responder who submitted a statement of qualifications to said request for qualifications. The register of responders shall be open for public inspection. Upon completion of the evaluations, the contents of the statements of qualifications shall be open to the public. The financial information contained in the statements of qualifications shall not be a public record as defined in section 7 of chapter 4.
(h) The prequalification committee established pursuant to subsection (c) shall evaluate each statement of qualifications using solely the criteria provided in the RFQ. Only general contractors achieving a minimum score of 70 shall be prequalified and invited to submit bids consistent with the section 44E. The prequalification committee shall select a minimum of 3 qualified general contractors to submit bids pursuant to said section 44E. Any general contractor invited to submit a bid pursuant to this subsection shall be subject to sections 44B and 44D.
A general contractor’s score shall be made available to the general contractor upon request. The decision of the prequalification committee shall be final and shall not be subject to appeal except on grounds of fraud or collusion.
(i) Notwithstanding subsections (a) to (h), inclusive, if the awarding authority qualifies less than 3 general contractors to submit bids pursuant to said subsection (h) and the prequalification process was required pursuant to said subsection (a), the awarding authority shall reject all responses and issue at least 1 new request for qualifications and, if the awarding authority still prequalifies less than 3 general contractors to submit bids pursuant to said section (h), then the awarding authority may reject all responses and issue a new request for qualifications, invite general bids pursuant to sections 44B to 44E, inclusive, or, if the awarding authority prequalifies at least 2 general contractors, then the awarding authority may invite bids from the 2 prequalified general contractors. If the awarding authority qualifies less than 3 general contractors to submit bids pursuant to said subsection (h) and the prequalification process was initiated at the option of the awarding authority pursuant to said subsection (a), the awarding authority may reject all responses and issue a new request for qualifications, invite general bids pursuant to said sections 44B to 44E, inclusive, without further prequalification, or, if the awarding authority prequalifies at least 2 general contractors, then the awarding authority may invite bids from the 2 prequalified general contractors. An awarding authority re-issuing a request for qualifications under this subsection may stipulate that a general contractor prequalified for a particular project during the first prequalification review by the awarding authority will remain prequalified for that particular project without further submission by the general contractor or review by the awarding authority, for not more than 120 days from the due date of the responses from the first request for qualifications issued to general contractors for the project.
(j) Regulations and procedures shall be promulgated by the commissioner of the division of capital asset management and maintenance to implement this section and to ensure that the prequalification process set forth in subsections (a) to (i), inclusive, is sufficient, fair and consistent.
Chapter 149: Section 44D3/4. Subcontractor sub-bids; prequalification procedures Section 44D3/4. (a) Notwithstanding section 44E, an awarding authority on contracts subject to section 44A which are estimated to cost not less than $10,000,000 shall prequalify subcontractors to submit sub-bids in accordance with the provisions of subsections (a) to (j), inclusive; provided that, on contracts subject to section 44A which are estimated to cost not less than $100,000 and not more than $10,000,000, an awarding authority may elect to prequalify subcontractors to submit sub-bids in accordance with subsections (a) to (i), inclusive. The prequalification process shall be for all sub-bid classes of work listed in subsection (1) of section 44F that meet or exceed the threshold value for sub-bid work of said subsection (1) of said section 44F. When prequalifying the subcontractors, the awarding authority shall initiate the prequalification process through the solicitation of responses to a request for qualifications pursuant to subsection (d) of this section.
(b) Notwithstanding subsection (a), the division of capital asset management and maintenance, the Massachusetts Port Authority, the Massachusetts Water Resources Authority, the Massachusetts State Colleges Building Authority, and the University of Massachusetts Building Authority, hereinafter called exempt agencies, shall not be subject to said subsection (a), but may elect to prequalify subcontractors to submit sub-bids in accordance with subsections (c) to (j), inclusive.
(c) Before issuing a request for qualifications, hereinafter called RFQ, the awarding authority shall establish a prequalification committee for the purpose of reviewing and evaluating responses submitted in response to the RFQ issued pursuant to subsection (d). The prequalification committee shall be comprised of 1 representative of the designer and 3 representatives of the awarding authority. One of the representatives of the awarding authority shall be the owner’s project manager if an owner’s project manager is required on the building project pursuant to section 44A 1/2.
(d) When prequalifying subcontractors, the awarding authority shall initiate the prequalification process through public notice of the building project and the solicitation of responses to the RFQ from subcontractors; but, the public notice and solicitation shall include:(1) the time and date for receipt of responses to the RFQ, the address of the office to which the responses are to be delivered, and the timeframe in which the public agency will respond to said responses;(2) the evaluation procedure and the criteria for the prequalification of subcontractors, including the point rating system, and the schedule for the evaluation process;(3) a general description of the project and the subcontractor’s class of work;(4) the anticipated schedule and estimated construction cost for the project;(5) a listing of the project team including the awarding authority, designer, and awarding authority’s owner’s project manager, if applicable;(6) a statement indicating that the RFQ will be used to prequalify subcontractors that will be invited to submit a bid pursuant to sections 44E and 44F;(7) a prohibition against any unauthorized communication or contact with the awarding authority outside of official pre-bid meetings; and if desired,(8) a limitation on the size and number of pages to be included in the response to the RFQ.
(e) The awarding authority shall require interested subcontractors to submit a statement of qualifications in response to the RFQ issued pursuant to subsection (d); provided that the RFQ shall require only the information contained in paragraphs (1) to (4), inclusive, of this paragraph, and shall identify the specific point allocation for each category and sub-category of information. Within each category of information, the awarding authorities may use discretion in allocating points among the subcategories, consistent with the total points for the category.
(1) Management Experience (50 points; minimum of 25 required for approval):(i) Business owners, The name, title, years with firm of the owner(s) of the business.
(ii) Management personnel, The names, title, education and construction experience, years with firm, and list of projects completed by all management personnel.
(iii) Similar project experience, The project name(s), description, description of scope, original trade contract sum, final trade contract sum with explanation and date completed of similar projects.
(iv) Terminations, A list of any projects on which the subcontractor was terminated or failed to complete the work.
(v) Legal proceedings, A list of all legal or administrative proceedings currently pending against the subcontractor or concluded adversely to the subcontractor within the past 3 years which relate to the procurement or performance of any public or private construction contract. Legal proceedings shall not include any actions that primarily involve personal injury or workers’ compensation claims, or where the sole cause of action involves the subcontractor’s exercise of its rights for direct payment under section 39F of chapter 30.
(vi) Safety Record—The 3 year history of the subcontractor’s workers’ compensation experience modifier.
(2) References (30 points; minimum of 15 required for approval) :(i) Project references, References from owners and architects for all projects listed in clause (iii) of paragraph (1) including project name, client’s name, address, telephone and fax number, and contact person.
(ii) Credit references, A minimum of 5 credit references, including telephone and fax number of contact person from key suppliers, vendors and banks.
(iii) Public project record, A list of all completed public building construction project as defined in section 44A during past 3 years with client’s name, address, telephone and fax number and contact person.
(3) Capacity to Complete Projects (20 points; minimum of 10 required for approval):(i) Annual revenue for prior 3 fiscal years, provided that financial information submitted shall remain confidential and shall not be a public record under section 7 of chapter 4. There shall be no requirement for submission of financial statements.
(ii) Revenue under contract for the next 3 fiscal years.
(4) Mandatory requirement, for which no points are assigned:A commitment letter for payment and performance bonds at 100 per cent of the estimated contract value from a surety company licensed to do business in the commonwealth and whose name appears on United States Treasury Department Circular 570.
The statement of qualifications shall be signed under pains and penalties of perjury.
(f) The public notice and solicitation required in subsection (d) shall be advertised in a newspaper of general circulation in the area in which the building project is located, in the central register pursuant to section 20A of chapter 9, and within the COMPASS system, so-called. The public notice and solicitation shall be given not less than 2 weeks before the deadline for submitting responses to the RFQ.
(g) The awarding authority shall not open the responses to the RFQ publicly, but shall open them in the presence of 1 or more witnesses at the time specified in the RFQ. At the opening of responses, the awarding authority shall prepare a register of responders which shall include the name of each responder who submitted a statement of qualifications to said request for qualifications. The register of responders shall be open for public inspection. Upon completion of the evaluation of the responses, the contents of the statements of qualifications shall be open to the public; but, the financial information contained in the statements of qualifications shall not be a public record as defined in section 7 of chapter 4.
(h) Upon receipt of the statement of qualifications submitted by subcontractors, the prequalification committee established pursuant to subsection (c) shall evaluate each statement of qualifications using solely the criteria provided in the RFQ pursuant to paragraph (e). Only subcontractors achieving a minimum score of 70 shall be prequalified and invited to submit bids consistent with the provisions of section 44E. The prequalification committee shall select a minimum of 3 qualified subcontractors to submit bids pursuant to said section 44E. The subcontractor invited to submit a bid pursuant to this subsection shall be subject to section 44B.
A subcontractor’s score shall be made available to the subcontractor upon request. The decision of the prequalification committee shall be final and shall not be subject to appeal except on grounds of fraud or collusion.
(i) Notwithstanding subsections (a) to (h), inclusive, if the awarding authority qualifies less than 3 subcontractors in a particular trade to submit bids pursuant to said subsection (h) and the prequalification process was required pursuant to said subsection (a), the awarding authority shall reject all responses and issue at least 1 new request for qualifications and, if the awarding authority still prequalifies less than 3 subcontractors to submit filed sub-bids pursuant to said subsection (h), then the awarding authority may reject all responses and issue a new request for qualifications, invite filed sub-bids pursuant to sections 44B to 44E, inclusive, without further prequalification, or, if the awarding authority prequalifies at least 2 subcontractors in the particular trade, then the awarding authority may invite bids from the 2 prequalified subcontractors. If the awarding authority qualifies less than 3 subcontractors to submit filed sub-bids pursuant to said subsection (h) and the prequalification process was initiated at the option of the awarding authority pursuant to said subsection (a), the awarding authority may reject all responses and issue a new request for qualifications, invite filed sub-bids pursuant to said sections 44B to 44E, inclusive, without further prequalification, or, if the awarding authority prequalifies at least 2 subcontractors in the particular trade, then the awarding authority may invite filed sub-bids from the 2 prequalified subcontractors. An awarding authority re-issuing a request for qualifications under this subsection may stipulate that a subcontractor prequalified for a particular project during the first prequalification review by the awarding authority will remain prequalified for that particular project without further submission by the subcontractor or review by the awarding authority for not more than 120 days from the due date of the responses from the first request for qualifications issued to subcontractors for the project.
(j) The commissioner of the division of capital asset management and maintenance, in conjunction with the inspector general, shall promulgate regulations and procedures to implement this section and to ensure that the prequalification process set forth in subsections (a) to (i), inclusive, is sufficient, fair and consistent.
Chapter 149: Section 44D. Submission of bid or offer; application for certification Section 44D. (1) (a) Every bid or offer submitted for a contract subject to section forty-four A shall be accompanied by a copy of a certificate of eligibility issued by the commissioner showing that the bidder or offeror has the classification and capacity rating to perform the work required. The bid or offer shall also be accompanied by an update statement in such form as the commissioner shall prescribe. A blank copy of such form shall be furnished by the awarding authority to every person or business entity requesting a copy. The update form shall provide space for information regarding all projects completed by the bidder or offeror since the date of certification of eligibility, all projects which the bidder or offeror currently has under contract including the percentage of work on such projects not completed, the names and qualifications of the personnel who will have supervisory responsibility for the performance of the contract, any significant changes in the bidder’s or offeror’s financial position or business organization since the date of certification of eligibility, and such other relevant information as the commissioner shall prescribe. The bidder or offeror shall also include in its bid or offer and update statement the list of completed construction projects submitted to the division in its most recent application for contractor certification. Any bid or offer submitted without the appropriate certificate and update statement shall be invalid.
(b) The applicant shall certify under penalties of perjury at the conclusion of the application to bid that there have been no substantial changes in his financial position or business organization other than those changes noted within the application since the applicant’s most recent prequalification statement and that the bid to be made will be in all respects bonafide, fair and made without collusion or fraud with any other person. “Person” here means any natural person, joint venture, partnership, corporation or other business or legal entity which sells materials, equipment or supplies used in or for, or engages in the performance of, the same or similar construction, reconstruction, installation, demolition, maintenance or repair work or any part thereof.
(2) The division of capital asset management and maintenance shall accept applications for certification in such form as the commissioner shall prescribe, signed by the applicant under penalties of perjury, supplying information concerning the applicant’s form of organization, its principals and key personnel; the applicant’s experience on public and private construction projects over the past five years or on the twenty projects most recently completed; all legal or administrative proceedings currently pending against the applicant or concluded adversely to the applicant within the past five years which relate to the procurement or performance of any public or private construction contract, the nature of any financial, personal or familial relationship to any public or private construction project owners listed on the application as constituting prior construction experience; and such other information as the commissioner shall deem relevant to the determination of the applicant’s qualifications and responsibility. The application shall include a statement of financial condition prepared by a certified public accountant which shall contain information concerning the applicant’s current assets and liabilities, plant and equipment; bank and credit references, bonding company and maximum bonding capacity; and such other information as the commissioner shall deem relevant to an evaluation of the applicant’s financial capacity and responsibility. The information contained in the application shall be current at the time of filing; provided, however, that the statement of financial condition shall pertain to the applicant’s most recent, completed fiscal year. Any materially false statement in the application or update statement may, in the discretion of the awarding authority, result in termination of any contract awarded the applicant by the awarding authority, and shall constitute cause for debarring the applicant from future public work as provided in section 44C and shall subject the applicant to the punishments for perjury as set forth in section 1 of chapter 268. An application for a certificate of eligibility shall not be a public record as defined in section 7 of chapter 4.
(3) The division of capital asset management and maintenance shall evaluate every applicant on the basis of the application and on relevant past performance according to procedures and criteria which the commissioner shall prescribe by regulations or guidelines. Such criteria shall include the following:— the record of the applicant’s performance including, where available, written evaluations of the applicant’s performance on public and private jobs over the past five years; the applicant’s prior experience on projects of various size and type; the experience and qualifications of supervisory personnel; the maximum amount of work the applicant is capable of undertaking as demonstrated by the applicant’s financial condition, bonding capacity, size of previous projects, and present and anticipated work commitments; and any other relevant criteria which the commissioner may prescribe. The regulations and guidelines shall provide that, to the extent possible, the criteria considered shall be assigned separate designated numerical values and weights, and the applicant shall be assigned an overall numerical rating on the basis of all criteria. The applicant shall indicate among categories established by the commissioner the classes of work and aggregate amount of work for which certification is sought. The division of capital asset management and maintenance shall issue a certificate as warranted by the evaluation which shall be effective for one year from the date issued, showing the classes of work and aggregate amount of work on which the applicant is eligible to bid. Said certificate shall include the number of prior construction projects evaluated by the division of capital asset management and maintenance, the contractor’s average numerical value on those projects evaluated, and the number of projects given numerical values below a passing score, as defined by the division’s regulations or guidelines, during each of the previous 5 years.
(4) The division of capital asset management and maintenance shall promptly notify an applicant of its preliminary determination regarding the conditions of the certification, or a denial of certification, or of decertification pursuant to this section, and the reasons therefor. An applicant aggrieved by the division’s preliminary determination may, within five business days of receipt of notice, request copies of the information upon which the division relied in making its preliminary determination. Within ten business days of receipt of notice, the applicant may submit further information to the division with a request for reconsideration. The division shall issue a final determination regarding an application for certification within thirty business days from the date of its preliminary determination, unless the applicant and the division agree to extend the thirty day period.
Any applicant aggrieved by the final determination of the division may appeal in writing to the attorney general within five business days of receipt of final notice thereof. Within thirty calendar days of such appeal, the attorney general shall investigate the matter and issue a written decision. The attorney general may institute and prosecute proceedings in the superior court to enforce the provisions of this section on the same terms as set forth in section forty-four H. Following such decision by the attorney general, or failure to render a decision within the thirty-day period, either the division or the applicant may seek remedies at law.
(5) The commissioner may, upon receipt of additional information regarding a contractor’s qualifications, decertify a contractor or reduce the classes of work and amount of work on which the contractor is eligible to bid during the period for which the contractor was prequalified. Upon such a decision, the commissioner shall follow the procedures established by this section.
(6) In determining who is the lowest responsible and eligible bidder as required in paragraph (2) of section forty-four A, the awarding authority shall consider the information submitted by the bidder in the update statement. If the awarding authority determines that the low bidder is not responsible and eligible, the awarding authority shall reject the bidder and evaluate the next low bidder in accordance with this section; the awarding authority shall give notice of such action to the division of capital asset management and maintenance.
In determining which is the most advantageous offer, the awarding authority shall consider the information submitted by the offer ors on the update statement.
(7) The division of capital asset management and maintenance shall develop a standard contractor evaluation form that shall be completed by every public agency as defined in section 44A, upon completion of a building project under its control, and submitted to the division for the contractor’s qualification file. The official from the public agency, or the owner’s representative, shall certify that the information contained on the contractor evaluation form represents, to the best of his knowledge, a true and accurate analysis of the contractor’s performance record on that contract. The public agency shall mail a copy of the contractor evaluation form to the contractor and the contractor shall, within 30 days, submit a written response to the division disputing any information contained in the evaluation form and setting forth any additional information concerning the building project or the oversight of the contract by the public agency that may be relevant to the evaluation of the contractor’s performance on the contract. The division shall attach any such response to the evaluation form for inclusion in the contractor’s qualification file. No person shall be liable for any injury or loss to a contractor as a result of the completion of a contractor evaluation form as required by this section unless the individual completing the form has been found by a court of competent jurisdiction to have acted in a willful, wanton or reckless manner. If a suit is commenced by a contractor against a public employee, an owner’s representative, an architect or an engineer who has completed a contractor evaluation form as required by this section seeking to recover damages resulting from injury caused by such evaluation, the public agency for whom such evaluation form was completed, or the commonwealth if such evaluation was completed for a state agency, shall provide for the legal representation of said employee, owner’s representative, architect or engineer. Such public agency, or the commonwealth, shall also indemnify such person from all financial loss and expenses, including but not limited to legal fees and filing costs, in an amount not to exceed $1,000,000. No such person shall be indemnified for losses other than legal fees and filing costs under this section if such person is found by a court or a jury to have acted in a willful, wanton or reckless manner. Evaluations, including any responses submitted by the contractor, submitted to the division pursuant to this subsection shall be a public record as defined in section 7 of chapter 4.
At approximately the 50 per cent completion stage of a building project under its control, the awarding authority shall advise the contractor in writing of the awarding authority’s preliminary evaluation of the contractor’s performance on the project for informational purposes.
Any public agency that fails to complete and submit the contractor evaluation form, together with any written response by any contractor, to the division within 70 days of the completion of a project shall be ineligible for the receipt of any public funds disbursed by the commonwealth for the purposes of any public buildings or public works projects.
(8) With the exception of subsection (7), this section shall not apply to sub-bidders.
(9) The commissioner may issue such rules, regulations, orders, guidelines and policies as deemed necessary or expedient to effectuate the purposes of this section.
(10) All applications submitted by contractors for certification in the category of asbestos removal shall contain evidence of a current license issued under section six B. Failure to furnish such evidence shall require the division of capital asset management and maintenance to find the applicant ineligible to bid. A general contractor who subcontracts the asbestos removal work must certify in writing to the awarding authority that if awarded the contract, the general contractor will subcontract the work involving the removal, containment, or encapsulation of asbestos or material containing asbestos to a subcontractor who is licensed under said section six B.
In no event shall any public contract involving the removal, containment or encapsulation of asbestos or material containing asbestos be performed by anyone other than a general contractor or subcontractor licensed to perform such work.
(11)(i) Every sub-bid submitted for a contract subject to section 44A shall be accompanied by a copy of a certificate of eligibility issued by the commissioner showing that the sub-bidder has been certified to participate on public construction projects and to perform the work required. The sub-bid shall also be accompanied by an update statement in a form as the commissioner shall prescribe. A blank copy of the form shall be furnished by the awarding authority to every person or business entity requesting a copy. The update form shall provide space for information regarding all projects in which the sub-bidder participated on since the date of certification of eligibility, all projects which the sub-bidder currently has under contract including the percentage of work on such projects not completed, the names and qualifications of the personnel who will have supervisory responsibility for the performance of the contract, any significant changes in the sub- bidder’s financial position or business organization since the date of certification of eligibility, and such other relevant information as the commissioner shall prescribe. The sub-bidder shall also include in its bid and update statement the list of completed construction projects submitted to the division in its most recent application for subcontractor certification. Any sub-bid submitted without the appropriate certificate and update statement shall be invalid.
(ii) The applicant shall certify under penalties of perjury at the conclusion of the application to bid that there have been no substantial changes in his financial position or business organization other than those changes noted within the application since the applicant’s most recent update statement and that the sub-bid to be made will be in all respects bonafide, fair and made without collusion or fraud with any other person. As used in this subsection, “Person” shall mean any natural person, joint venture, partnership, corporation or other business or legal entity which sells materials, equipment or supplies used in or for, or engages in the performance of, the same or similar construction, reconstruction, installation, demolition, maintenance or repair work or any part thereof.
(12) The division of capital asset management and maintenance shall accept applications for subcontractor certification in a form as the commissioner shall prescribe, signed by the applicant under penalties of perjury, supplying information concerning the applicant’s form of organization, its principals and key personnel; the applicant’s experience on public and private construction projects over the past 3 years or on the 10 projects on which the applicant most recently performed work; all legal or administrative proceedings currently pending against the applicant or concluded adversely to the applicant within the past 3 years which relate to the procurement or performance of any public or private construction contract, the nature of any financial, personal or familial relationship to any public or private construction project owners listed on the application as constituting prior construction experience; and such other information as the commissioner considers relevant to the determination of the applicant’s qualifications and responsibility. The application shall include a statement of financial condition prepared by a certified public accountant which shall include, but not necessarily be limited to, information concerning the applicant’s current assets and liabilities, bank and credit references, bonding company and maximum bonding capacity; and such other information as the commissioner shall consider relevant to an evaluation of the applicant’s financial capacity and responsibility. The information contained in the application shall be current at the time of filing; but, the statement of financial condition shall pertain to the applicant’s most recent, completed fiscal year. Any materially false statement in the application or update statement may, in the discretion of the awarding authority, result in termination of any contract awarded the applicant by the awarding authority, and shall constitute cause for debarring the applicant from future public work as provided in section 44C and shall subject the applicant to the punishments for perjury as set forth in section 1 of chapter 268. Applications for a certificate of eligibility shall not be a public record as defined in section 7 of chapter 4.
Every applicant shall pay to the division, upon filing his application for subcontractor certification, a nonrefundable fee to be determined annually by the commissioner of administration and finance under section 3B of chapter 7. The application fee shall not be less than $100.
(13) The division of capital asset management and maintenance shall evaluate every applicant on the basis of the application and on relevant past performance according to procedures and criteria which the commissioner shall prescribe by regulations or guidelines. Such criteria shall include the record of the applicant’s performance including, where available, written evaluations of the applicant’s performance on public and private jobs over the past 3 years; the experience and qualifications of supervisory personnel; and any other relevant criteria that the commissioner may prescribe. The regulations and guidelines shall provide that, to the extent possible, the criteria considered shall be assigned separate designated numerical values and weights, and the applicant shall be assigned an overall numerical rating on the basis of all criteria. The applicant shall indicate among categories established by the commissioner the class of work for which certification is sought. The division of capital asset management and maintenance shall issue a certificate as warranted by the evaluation which shall be effective for 1 year from the date issued, showing the class of work on which the applicant is eligible to bid. The certificate shall include the number of prior construction projects evaluated by the division of capital asset management and maintenance, the contractor’s average numerical value on those projects evaluated, and the number of projects given numerical values below a passing score, as defined by the division’s regulations or guidelines, during each of the previous 3 years.
(14) The division of capital asset management and maintenance shall promptly notify an applicant of its preliminary determination regarding the conditions of the certification, or a denial of certification, or of decertification pursuant to this section, and the reasons therefor. An applicant aggrieved by the division’s preliminary determination may, within 5 business days of receipt of notice, request copies of the information upon which the division relied in making its preliminary determination. Within 10 business days of receipt of notice, the applicant may submit further information to the division with a request for reconsideration. The division shall issue a final determination regarding an application for certification within 30 business days from the date of its preliminary determination, unless the applicant and the division agree to extend the 30-day period.
Any applicant aggrieved by the final determination of the division may appeal in writing to the attorney general within 5 business days of receipt of final notice thereof. Within 30 calendar days of the appeal, the attorney general shall investigate the matter and issue a written decision. The attorney general may institute and prosecute proceedings in the superior court to enforce this section on the same terms as set forth in section 44H. Following the decision by the attorney general, or failure to render a decision within the 30-day period, either the division or the applicant may seek remedies at law.
(15) The commissioner may, upon receipt of additional information regarding a subcontractor’s qualifications, decertify a subcontractor. Upon that decision, the commissioner shall follow the procedures established by this section.
(16) The division of capital asset management and maintenance shall develop a standard subcontractor evaluation form that shall be completed by every public agency as defined in section 44A, upon completion of a building project under its control, and submitted to the division for the subcontractor’s qualification file. The official from the public agency, or the owner’s representative, shall certify that the information contained on the contractor evaluation form represents, to the best of his knowledge, a true and accurate analysis of the contractor’s performance record on that contract. The public agency shall mail a copy of the subcontractor evaluation form to the subcontractor and the subcontractor shall, within 30 days, submit a written response to the division disputing any information contained in the evaluation form and setting forth any additional information concerning the building project or the oversight of the contract that may be relevant to the evaluation of the subcontractor’s performance on the contract. The division shall attach any such response to the evaluation form for inclusion in the subcontractor’s qualification file. No person shall be liable for any injury or loss to a subcontractor as a result of the completion of a subcontractor evaluation form as required by this section unless the individual completing the form has been found by a court of competent jurisdiction to have acted in a willful, wanton or reckless manner. If a suit is commenced by a subcontractor against a public employee, an owner’s representative, an architect or an engineer who has completed a subcontractor evaluation form as required by this section seeking to recover damages resulting from injury caused by such evaluation, the public agency for whom the evaluation form was completed, or the commonwealth if the evaluation was completed for a state agency, shall provide for the legal representation of the employee, owner’s representative, architect or engineer. The public agency, or the commonwealth, shall also indemnify the person from all financial loss and expenses, including but not limited to legal fees and filing costs, in an amount not to exceed $1,000,000. No person shall be indemnified for losses other than legal fees and filing costs under this section if the person is found by a court or a jury to have acted in a willful, wanton or reckless manner.
Evaluations, including any responses submitted by the contractor, submitted to the division pursuant to this subsection shall be a public record as defined in section 7 of chapter 4.
Any public agency that fails to complete and submit the subcontractor evaluation form, together with any written response by any subcontractor, to the division within 90 days of the completion of a project shall be ineligible to receive any public funds disbursed by the commonwealth for the purposes of any public buildings or public works projects.
(17) The commissioner may issue rules, regulations, orders, guidelines and policies considered necessary or expedient to effectuate the purposes of this section.
Chapter 149: Section 44E1/2. Renovation and repair of state house and historic Suffolk County courthouse; solicitation of bids; evaluation of bids; contract award; payment and performance bonds Section 44E1/2. The commissioner of capital asset management and maintenance may procure construction contracts for the renovation or repair of the state house and the historic Suffolk County courthouse in accordance with the provisions of this section.
The procurement of a contract for the renovation or repair of the state house or the historic Suffolk County courthouse shall be deemed a building project for purposes of section 39A of chapter 7.
When the commissioner procures a contract for the renovation or repair of the state house or the historic Suffolk County courthouse as authorized by this section, the commissioner shall solicit competitive sealed proposals through issuance of a request for proposals. The request shall include:(1) the time and date by which proposals shall be received, the address of the office to which the proposals shall be delivered and the maximum time for proposal acceptance by the division;(2) the purchase description and all criteria that shall be utilized in evaluating proposals;(3) all contractual terms and conditions applicable to the procurement but the contract may incorporate by reference a plan submitted by the selected offeror for renovating or repairing the state house or the historic Suffolk County courthouse;(4) a notice stating that every proposal shall be accompanied by a copy of an appropriate certificate of eligibility issued by the commissioner pursuant to section 44D, together with an update statement; and(5) a notice stating that every proposal shall be accompanied by a certification that the offeror is able to furnish labor that can work in concert with all other elements of labor employed or to be employed at the state house or the historic Suffolk County courthouse.
The request for proposals may incorporate documents by reference so long as the request for proposals specifies where prospective offerors may obtain such documents. The request for proposals shall provide for the separate submission of a price proposal and shall indicate when and how an offeror shall submit the price proposal. The division shall make copies of the request for proposals available to all persons on an equal basis.
Public notice of the request for proposals for the renovation or repair of the state house or the historic Suffolk County courthouse shall be published in accordance with the provisions of section 44J.
The division shall not open the proposals publicly, but shall open them in the presence of at least one witness at the time specified in the request for proposals. Notwithstanding section 7 of chapter 4, until the completion of the evaluation or until the time for acceptance specified in the request for proposals, whichever occurs earlier, the contents of the proposals shall remain confidential and shall not be disclosed to competing offerors. At the opening of proposals the division shall prepare a register of proposals. The register of proposals shall be open for public inspection. The division shall open the price proposals at a later time and shall open the price proposals in a manner that ensures that the content of the price proposals is not disclosed to the individuals evaluating the proposals on the basis of criteria other than price.
The division shall designate the individuals responsible for the evaluation of the proposals on the basis of criteria other than price. The designated individuals shall prepare their evaluations based solely on the criteria set forth in the request for proposals. Such criteria shall include all standards by which acceptability shall be determined as to quality, workmanship, results of inspections and tests, and suitability for a particular purpose, and shall also include all other measures that shall be utilized. The evaluations shall specify in writing:(1) for each evaluation criterion, a rating of each proposal as highly advantageous, advantageous, not advantageous or unacceptable, and the reasons for such rating;(2) a composite rating for each proposal and the reasons for such rating; and(3) recommendations for revisions, if any, to each proposed plan for the renovation or repair of the state house or the historic Suffolk County courthouse which shall be obtained by negotiation prior to awarding the contract to the offeror of the proposal.
The division shall unconditionally accept a proposal except as provided by this paragraph. An offeror may correct, modify or withdraw a proposal by written notice received in the office designated in the request for proposals prior to the time and date set for the opening of proposals. After such opening, an offeror may not change the price or any other provisions of the proposal in a manner prejudicial to the interests of the division or fair competition. The division shall waive minor informalities or allow the offeror to correct them. If a mistake and the intended offer are clearly evident on the face of the document, the division shall correct the mistake to reflect the intended correct offer and so notify the offeror in writing, and the offeror may not withdraw the offer. The division may permit an offeror to withdraw an offer if a mistake is clearly evident on the face of the document but the intended correct offer is not similarly evident.
Taking into consideration price and the evaluation criteria set forth in the request for proposals, the commissioner shall determine the most advantageous proposal from a responsible, responsive and eligible offeror. If a responsible, responsive and eligible offeror submits the lowest price and has received a composite rating of highly advantageous on the basis of criteria other than price, then the commissioner shall determine that offeror’s proposal to be the most advantageous proposal. If the offeror who submits the lowest price has not received a composite rating of highly advantageous on the basis of criteria other than price, then the commissioner may, but shall not be required to, determine that the lowest price proposal from among those proposals that have received a composite rating of highly advantageous on the basis of criteria other than price, is the most advantageous proposal. The commissioner may condition an award on successful negotiation of any revisions recommended in the evaluation and shall explain in writing the reasons for omitting any such revisions from the contract. The division shall award the contract by written notice to the selected offeror within the time for acceptance specified in the request for proposals. The parties may extend the time for acceptance by mutual agreement.
If the commissioner awards the contract to an offeror who did not submit the lowest price, the commissioner shall explain the reasons for the award in writing, specifying in reasonable detail the basis for determining that the anticipated performance of the selected offeror justifies the additional cost, and the division shall maintain such explanation in its files for at least six years from the date of final payment under the contract.
Prior to execution of a contract pursuant to this section, the selected offeror shall furnish to the division a payment bond and a performance bond of a surety company qualified to issue bonds in the commonwealth and satisfactory to the division each in the sum of the contract price.
Chapter 149: Section 44E. Filing of bids; forms; modular buildings Section 44E. (1) Whenever general bids are invited for a contract subject to section 44A and whenever sub-bids are invited in connection with such a contract subject to subsection (1) of section 44F, the awarding authority shall prescribe 1 place for filing the general bids and 1 place for filing the sub-bids, which need not be the same place. Notwithstanding any general or special law, ordinance or by-law to the contrary, a bidder shall not be required to file a duplicate of his bid or sub-bid in any other place. For all projects where prequalification of general contractors is required, or where an awarding authority has elected to prequalify general contractors pursuant to subsection (a) of section 44D 1/2, an awarding authority shall request bids only from general contractors who have been so prequalified pursuant to subsections (a) to (j), inclusive, of section 44D 1/2. For all projects where prequalification of subcontractors is required, or where an awarding authority has elected to prequalify subcontractors pursuant to subsection (a) of section 44D 3/4, an awarding authority shall request bids only from subcontractors who have been so prequalified pursuant to subsections (a) to (j), inclusive, of section 44D 3/4.
(2) Every general bid submitted for a contract subject to section forty-four A shall be submitted on a form furnished by the awarding authority and containing the following provisions: and containing the following provisions:FORM FOR GENERAL BID To the Awarding Authority:A. The Undersigned proposes to furnish all labor and materials required for _____________________ in ______________________________, (project)Massachusetts, in accordance with the accompanying plans and specifications prepared by ____________________________________________ for (name of architect or engineer)the contract price specified below, subject to additions and deductions according to the terms of the specifications.
B. This bid includes addenda numbered _________________________C. The proposed contract price is ______________________________dollars ($________).
For alternate No.
__________ Add $__________; Subtract __________(Repeat preceding line for each alternate) D. The subdivision of the proposed contract price is as follows:Item 1. The work of the general contractor, being all work other than that covered by Item 2. $_________________________________________Item 2. Sub-bids as follows:—The undersigned agrees that each of the above named sub-bidders will be used for the work indicated at the amount stated, unless a substitution is made. The undersigned further agrees to pay the premiums for the performance and payment bonds furnished by sub-bidders as requested herein and that all of the cost of all such premiums is included in the amount set forth in Item 1 of this bid.
The undersigned agrees that if he is selected as general contractor, he will promptly confer with the awarding authority on the question of sub-bidders; and that the awarding authority may substitute for any sub-bid listed above a sub-bid filed with the awarding authority by another sub-bidder for the sub-trade against whose standing and ability the undersigned makes no objection; and that the undersigned will use all such finally selected sub-bidders at the amounts named in their respective sub-bids and be in every way as responsible for them and their work as if they had been originally named in this general bid, the total contract price being adjusted to conform thereto.
E. The undersigned agrees that, if he is selected as general contractor, he will within five days, Saturdays, Sundays and legal holidays excluded, after presentation thereof by the awarding authority, execute a contract in accordance with the terms of this bid and furnish a performance bond and also a labor and materials or payment bond, each of a surety company qualified to do business under the laws of the commonwealth and satisfactory to the awarding authority and each in the sum of the contract price, the premiums for which are to be paid by the general contractor and are included in the contract price.
[Second paragraph of paragraph E of subsection (2) effective until July 1, 2006. For text effective July 1, 2006, see below.
] The undersigned hereby certifies that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work and that he will comply fully with all laws and regulations applicable to awards made subject to section forty-four A.
[Second paragraph of paragraph E of subsection (2) as amended by 2004, 306, Sec. 3 effective July 1, 2006. See 2004, 306, Sec. 5. For text effective until July 1, 2006, see above.
] The undersigned hereby certifies that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work; that all employees to be employed at the worksite will have successfully completed a course in construction safety and health approved by the United States Occupational Safety and Health Administration that is at least 10 hours in duration at the time the employee begins work and who shall furnish documentation of successful completion of said course with the first certified payroll report for each employee; and that he will comply fully with all laws and regulations applicable to awards made subject to section 44A.
The undersigned further certifies under the penalties of perjury that this bid is in all respects bona fide, fair and made without collusion or fraud with any other person. As used in this subsection the word “person” shall mean any natural person, joint venture, partnership, corporation or other business or legal entity. The undersigned further certifies under penalty of perjury that the said undersigned is not presently debarred from doing public construction work in the commonwealth under the provisions of section twenty-nine F of chapter twenty-nine, or any other applicable debarment provisions of any other chapter of the General Laws or any rule or regulation promulgated thereunder. eral Laws or any rule or regulation promulgated thereunder.
Date ________________________________________________________ (Name of General Bidder) By ________________________________ (Name of Person Signing Bid and Title)____________________________________ (Business Address)____________________________________ (City and State)(3) General bids shall be for the complete work as specified and shall include the names of sub-bidders and the amounts of their sub-bids; and the general contractor shall be selected on the basis of such general bids. Every general bid which is not accompanied by a bid deposit as prescribed by paragraph (2) of section forty-four B, or which otherwise does not conform with sections forty-four A to forty-four H, inclusive, or which is on a form not completely filled in, or which is incomplete, conditional or obscure, or which contains any addition not called for, shall be invalid; and the awarding authority shall reject every such bid. No such bid shall be rejected because of the failure to submit prices for, or information relating to, any item or items for which no specific space is provided in the bid form furnished by the awarding authority, but this sentence shall not be applicable to any failure to furnish prices or information required by this section.
General bids shall be publicly opened and read by the awarding authority forthwith after the time limit for filing thereof.
The bid price shall be the price set forth in a clearly designated place on the bid form for that purpose. No general bid shall be rejected (1) because the sum of the prices for all work of the general contractor and sub-bids does not equal the general bid price set forth on the bid form for that purpose or (2) because of error in setting forth the name, the sub-bid price of a sub-bidder, or the total sub-bids as long as the sub-bidder or sub-bidders designated are clearly identifiable, or (3) because the plans and specifications do not accompany the bid or are not submitted with the bid.
(4) A public agency may procure modular buildings in accordance with the provisions of this section.
The provisions of sections twenty-six to twenty-seven G, inclusive, shall not apply to the manufacture of modular buildings procured pursuant to this section, but shall apply to all work ordinarily and customarily performed on modular buildings at building sites, including, but not limited to, construction of foundations, attachment to external utilities, and installation and assembly of modular unit, including any assembly performed at any site in the commonwealth other than a place of manufacture. All applicable provisions of building codes and other laws shall apply thereto.
The procurement of a modular building shall be deemed a building project for purposes of section thirty-nine A of chapter seven. The division of capital asset management and maintenance shall exercise control and supervision of the procurement of modular buildings by state agencies to the extent provided by sections forty A and forty B of chapter seven.
An awarding authority shall not procure a modular building to replace another modular building unless it has first certified that such replacement is necessary, cost-effective over the long term, and not detrimental to the public policy and interest and has set forth, in writing, a detailed explanation of its reasons for such certification.
When an awarding authority procures modular buildings as authorized by this section the awarding authority shall solicit competitive sealed proposals through a request for proposals which shall include:(1) the time and date for receipt of proposals, the address of the office to which the proposals are to be delivered, and the maximum time for proposal acceptance by the awarding authority;(2) the purchase description and all evaluation criteria that will be utilized;(3) all contractual terms and conditions applicable to the procurement; provided, however, that the contract may incorporate by reference a plan submitted by the selected offeror for providing the modular buildings;(4) a notice that every proposal shall be accompanied by a copy of an appropriate certificate of eligibility issued by the commissioner pursuant to section forty-four D, together with an update statement; and(5) except where the request for proposals calls for manufacture or delivery to the building site, a notice that every proposal shall be accompanied by a certification that the offeror is able to furnish labor that can work in concert with all other elements of labor employed or to be employed at the site of installation.
The request for proposals may incorporate documents by reference; provided, however, that the request for proposals specifies where prospective offerors may obtain such documents. The request for proposals shall provide for the separate submission of price, and shall indicate when and how the offerors shall submit the price. The awarding authority shall make copies of the request for proposals available to all persons on an equal basis.
Public notice of the request for proposals for modular buildings shall be published in accordance with the provisions of section forty-four J.
The awarding authority shall not open the proposals publicly, but shall open them in the presence of one or more witnesses at the time specified in the request for proposals. Notwithstanding the provisions of section seven of chapter four, until the completion of the evaluation, or until the time for acceptance specified in the request for proposals, whichever occurs earlier, the contents of the proposals shall remain confidential and shall not be disclosed to competing offerors. At the opening of proposals the awarding authority shall prepare a register of proposals. The register of proposals shall be open for public inspection. The awarding authority may open the price proposals at a later time, and shall open the price proposals so as to avoid disclosure to the individuals evaluating the proposals on the basis of criteria other than price.
The awarding authority shall designate the individual or individuals responsible for the evaluation of the proposals on the basis of criteria other than price. The designated individuals shall prepare their evaluations based solely on the criteria set forth in the request for proposals. Such criteria shall include all standards by which acceptability will be determined as to quality, workmanship, results of inspections and tests, and suitability for a particular purpose, and shall also include all other measures that will be utilized. The evaluations shall specify in writing:(1) for each evaluation criterion, a rating of each proposal as highly advantageous, advantageous, not advantageous, or unacceptable and the reasons for such rating;(2) a composite rating for each proposal and the reasons for such rating;(3) recommendations for revisions, if any, to each proposed plan for providing the modular buildings which should be obtained by negotiation prior to awarding the contract to the offeror of the proposal; and(4) whether the modular buildings were manufactured within the commonwealth and whether such modular buildings were manufactured within the United States but outside the commonwealth.
The awarding authority shall unconditionally accept a proposal except as provided by this paragraph. An offeror may correct, modify or withdraw a proposal by written notice received in the office designated in the request for proposals prior to the time and date set for the opening of proposals. After such opening, an offeror may not change the price or any other provisions of the proposal in a manner prejudicial to the interest of the awarding authority or fair competition. The awarding authority shall waive minor informalities or allow the offeror to correct them. If a mistake and the intended offer are clearly evident on the face of the document, the awarding authority shall correct the mistake to reflect the intended correct offer and so notify the offeror in writing, and the offeror may not withdraw the offer. The awarding authority may permit an offeror to withdraw an offer if a mistake is clearly evident on the face of the document but the intended correct offer is not similarly evident.
Taking into consideration price and the evaluation criteria set forth in the request for proposals, the awarding authority shall determine the most advantageous proposal from a responsible, responsive, and eligible offeror. In determining the most advantageous proposal, the awarding authority shall give preference, other considerations being equal, in the following order: (a) modular buildings manufactured within the commonwealth; and (b) modular buildings manufactured outside of the commonwealth but within the United States. The awarding authority may condition an award on successful negotiation of any revisions recommended in the evaluation and shall explain in writing the reasons for omitting any such revisions from the contract. The awarding authority shall award the contract by written notice to the selected offeror within the time for acceptance specified in the request for proposals. The parties may extend the time for acceptance by mutual agreement.
If the awarding authority awards the contract to an offeror who did not submit the lowest price, the awarding authority shall explain the reasons for the award in writing, specifying in reasonable detail the basis for determining that the quality of modular buildings under the contract will not exceed the awarding authority’s actual needs or that the anticipated performance of the selected offeror justifies the additional cost, and shall maintain such explanation in its files for at least six years from the date of final payment under the contract.
Prior to execution of a contract pursuant to this section, the selected offeror shall furnish to the awarding authority a payment bond and a performance bond of a surety company qualified to issue bonds in the commonwealth and satisfactory to the awarding authority each in the sum of the contract price.
Chapter 149: Section 44F. Plans and specifications; sub-bids; form; contents Section 44F. (1)(a) Every contract subject to section forty-four A shall include specifications and, if deemed necessary or convenient by the awarding authority, plans, detailing all labor and materials to be furnished thereunder. Such specifications shall have a separate section for each of the following classes of work if in the estimate of the awarding authority such class of work will exceed $20,000: (a) roofing and flashing; (b) metal windows; (c) waterproofing, damp-proofing and caulking; (d) miscellaneous and ornamental iron; (e) lathing and plastering; (f) acoustical tile; (g) marble; (h) tile; (i) terrazzo; (j) resilient floors; (k) glass and glazing; (l) painting; (m) plumbing; (n) heating, ventilating and air-conditioning; (o) electrical work, including direct electrical radiation for heating; (p) elevators; (q) masonry work; and (r) any other class of work for which the awarding authority deems it necessary or convenient to receive sub-bids, provided that the awarding authority may, in addition, receive a combined sub-bid on the marble, tile and terrazzo work, but in that event, the marble, tile and terrazzo work shall each be a class of work for which the sub-bidder must list the information in a clearly designated place on the bid form for that purpose. Each separate section in the specifications prescribed or provided for by this paragraph shall state the time limit for filing sub-bids with the awarding authority, shall specify by number each sheet of plans showing work to be done by the subcontractor under such section, and shall require the subcontractor to install all materials to be furnished by him under such section other than materials which in the opinion of the awarding authority it is not customary under then current trade practices for such subcontractor to install and the installation of which is expressly required by another section of the specifications. Each class of work set forth in a separate section of the specifications pursuant to this section shall be a sub-trade designated in the appropriate category of the general bid form and shall be the matter of subcontract made on the basis of sub-bids in accordance with the procedure set forth in sections forty-four F(1)—(5).
Each separate section of the specifications required by the provisions of this section shall contain a paragraph describing by class of work and by reference to paragraph numbers in that section, each class of work, if any, requiring labor and materials which, in the opinion of the awarding authority based upon an investigation of the work involved, is customarily performed in that sub-trade under subcontract with a sub-bidder for that sub-trade, and which is estimated by the awarding authority to cost in excess of ten thousand dollars, and only each class of work so described shall be a class of work for which sub-bidder for that sub-trade must list the information required in the appropriate place designated on the bid form for that purpose.
Every contract subject to section forty-four A shall include specifications for the installation of weather protection and shall require that the general contractor shall install the same and that he shall furnish adequate heat in the area so protected during the months of November through March. Standards for such specifications shall be established by the commissioner of planning and operations in the executive office for administration and finance.
(2) Every sub-bid submitted in connection with a contract subject to section forty-four A for a sub-trade designated in item 2 of the general bid form pursuant to section forty-four E shall be submitted on a form furnished by the awarding authority and containing the following provisions:FORM FOR SUB-BID To all General Bidders Except those Excluded:A. The undersigned proposes to furnish all labor and materials required for completing, in accordance with the hereinafter described plans, specifications and addenda, all the work specified in Section No. ______ of the specifications and in any plans specified in such section, prepared by _____________________________ for _____________ in (name of architect or engineer) (project) ____________________, Massachusetts, for the contract (city or town) sum of ________________________ dollars ($_________________).
For Alternate No. ______; Add $______ Subtract $______[Repeat preceding line for each alternate]B. This sub-bid includes addenda numbered ____________C. This sub-bid __ may be used by any general bidder except: _________________________________________________ _________________________________________________ __ may only be used by the following general bidders: _________________________________________________ _________________________________________________[To exclude general bidders, insert “X” in one box only and fill in blank following that box. Do not answer C if no general bidders are excluded.
]D. The undersigned agrees that, if he is selected as a sub-bidder, he will, within 5 days, Saturdays, Sundays and legal holidays excluded, after presentation of a subcontract by the general bidder selected as the general contractor, execute with such general bidder a subcontract in accordance with the terms of this sub-bid, and contingent upon the execution of the general contract, and, if requested so to do in the general bid by the general bidder, who shall pay the premiums therefor, or if prequalification is required pursuant to section 44D 3/4, furnish a performance and payment bond of a surety company qualified to do business under the laws of the commonwealth and satisfactory to the awarding authority, in the full sum of the subcontract price.
E. The names of all persons, firms and corporations furnishing to the undersigned labor or labor and materials for the class or classes or part thereof of work for which the provisions of the section of the specifications for this sub-trade require a listing in this paragraph, including the undersigned if customarily furnished by persons on his own payroll and in the absence of a contrary provision in the specifications, the name of each such class of work or part thereto and the bid price for such class of work or part thereof are: Name Class of Work Bid price __________ ____________ __________ __________ ____________ __________ __________ ____________ __________ __________ ____________ __________ __________ ____________ __________ __________ ____________ __________[Do not give bid price for any class or part thereof furnished by undersigned.
]F. The undersigned agrees that the above list of bids to the undersigned represents bona fide bids based on the hereinbefore described plans, specifications and addenda and that, if the undersigned is awarded the contract, they will be used for the work indicated at the amounts stated, if satisfactory to the awarding authority.
G. The undersigned further agrees to be bound to the general contractor by the terms of the hereinbefore described plans, specifications, including all general conditions stated therein, and addenda, and to assume toward him all the obligations and responsibilities that he, by those documents, assumes toward the owner.
H. The undersigned offers the following information as evidence of his qualifications to perform the work as bid upon according to all the requirements of the plans and specifications:—1. Have been in business under present business name ____________ years.
2. Ever failed to complete any work awarded. __________3. List one or more recent buildings with names of the general contractor and architect on which you served as a sub-contractor for work of similar character as required for the above-named building.
4. Bank reference _____________________________________________[First paragraph of clause (I) of subsection (2) effective until July 1, 2006. For text effective July 1, 2006, see below.
] I. The undersigned hereby certifies that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work and that he will comply fully with all laws and regulations applicable to awards of subcontracts subject to section forty-four F.
[First paragraph of clause (I) of subsection (2) as amended by 2004, 306, Sec. 4 effective July 1, 2006. See 2004, 306, Sec. 5. For text effective until July 1, 2006, see above.
] I. The undersigned hereby certifies that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work; that all employees to be employed at the worksite will have successfully completed a course in construction safety and health approved by the United States Occupational Safety and Health Administration that is at least 10 hours in duration at the time the employee begins work and who shall furnish documentation of successful completion of said course with the first certified payroll report for each employee; and that he will comply fully with all laws and regulations applicable to awards of subcontracts subject to section 44F.
The undersigned further certifies under penalties of perjury that this sub-bid is in all respects bona fide, fair and made without collusion or fraud with any other person. As used in this subsection the word “person” shall mean any natural person, joint venture, partnership, corporation or other business or legal entity. The undersigned further certifies under penalty of perjury that the said undersigned is not presently debarred from doing public construction work in the commonwealth under the provisions of section twenty-nine F of chapter twenty-nine, or any other applicable debarment provisions of any other chapter of the General Laws or any rule or regulation promulgated thereunder.
Date __________________________________________________ (Name of Sub-bidder)By ________________________________ (Title and Name of Person Signing Bid)____________________________________ (Business Address)____________________________________ (City and State)(3) Every sub-bid in connection with a contract subject to section forty-four A for a sub-trade designated on the general bid form pursuant to section forty-four F(2) shall be for the complete work of the sub-trade as specified, and shall be filed with the awarding authority, in a sealed envelope, before twelve o’clock noon at least four days, Saturdays, Sundays and legal holidays excluded, before the day fixed by the awarding authority for the opening of general bids, and forthwith after the time limit for the filing thereof shall be publicly opened and read by the awarding authority, which, within two days thereafter, Saturdays, Sundays and legal holidays excluded, shall reject every sub-bid which is not accompanied by a bid deposit as prescribed in sub-section (2) of section forty-four B, or which otherwise does not conform with sections forty-four A to forty-four H, inclusive, or which is on a form not completely filled in, or which is incomplete, conditional or obscure, or which contains any addition not called for; provided, however, that the failure of the awarding authority to reject such a sub-bid within such period shall not validate such a sub-bid nor preclude the awarding authority from subsequently rejecting it. Not later than the second day, Saturdays, Sundays and legal holidays excluded, before the day fixed by the awarding authority for the opening of general bids, the awarding authority shall mail to every person on record as having taken a set of plans and specifications list of sub-bidders arranged by sub-trades and listing for each sub-trade the name, address and sub-bid price of every sub-bidder submitting a sub-bid thereon not rejected by the awarding authority and the general bidders excluded from using such sub-bid. A person shall not be named by a general bidder as a sub-bidder for a sub-trade on the general bid form unless such person is included for such sub-trade in said list. If a general bidder not excluded in said list from doing so names as a sub-bidder for a sub-trade on the general bid form a person included for such sub-trade in said list at the sub-bid price stated in said list, neither the general bid of such general bidder nor the general contract executed on the basis of such general bid shall be invalid or rejected because of the invalidity of such sub-bid, or because of error in said list, nor shall such general bid be rejected nor shall such general contract be invalid because of any invalid action taken by the awarding authority in connection with any sub-bid or sub-bids; but there shall be substitution of sub-bidders and adjustment of contract price as if paragraph (c) of section forty-four F(4) were applicable. No sub-bid shall be rejected because of the failure to submit prices for or information relating to, any item or items for which no space is provided in the sub-bid form furnished by the awarding authority; but this sentence shall not be applicable to any failure to furnish prices or information required by section forty-four F to be furnished in the Form for Sub-Bid.
Every sub-bidder duly filing a sub-bid with the awarding authority as aforesaid shall be bound thereby to every general bidder not excluded therein from the use thereof; and any variance from such sub-bid communicated to a general bidder shall be of no effect.
A performance and payment bond furnished by the subcontractor, either pursuant to the requirements of the prequalification process as established in section 44D 3/4 or at the request of a general contractor set forth in the general bid form, shall be for the benefit of the general contractor; shall secure the performance of the subcontract by the subcontractor; and shall indemnify and hold harmless the general contractor and the surety or sureties under the labor and materials or payment bond furnished by the general contractor to the awarding authority against (i) any and all loss and expense arising out of any and all claims in connection with the performance of the subcontract which would be required to be paid under the labor and materials or payment bond furnished by the general contractor to the awarding authority and (ii) attorneys’ fees in the event that the subcontractor, after notice, fails to assume the defense of and defend such claims.
Each sub-bidder shall list in the sub-bid form the name and bid price of each person, firm or corporation performing each class of work or part thereof for which the section of the specifications for that sub-trade requires such listing; provided that, in the absence of a contrary provision in the specifications, any sub-bidder may, without listing any bid price, list his own name for any such class of work or part thereof and perform that work with persons on his own payroll, if such sub-bidder, after sub-bid opening, shows to the satisfaction of the awarding authority that he does customarily perform such class of work or the part thereof with employees on his own payroll who are mechanics or laborers as referred to in section twenty-six, and is qualified so to do.
If a sub-trade for which the awarding authority is required to take filed sub-bids constitutes the predominant work of the contract, the awarding authority may include that sub-trade work as part of the general bidder’s work. The awarding authority shall award the general contract to the lowest responsible and eligible bidder who customarily performs that sub-trade with employees on his own payroll who are mechanics or laborers as referred to in said section twenty-six, except for any part of that sub-trade customarily performed by sub-contractors.
(4)(a)(1) If no sub-bid is filed for a sub-trade designated in the general bid form or if the only sub-bids which are filed are restricted to the use of one or more general bidders, the awarding authority may state, in an addendum issued with the list of sub-bidders required by subsection (3), that the general bidder shall include in the cost of his own work an amount to cover all the work required for any such sub-trade. The general contractor shall cause the work covered by such sub-trade to be done by a qualified and responsible sub-contractor, subject to the written approval of the awarding authority. If the awarding authority determines that any sub-contractor chosen by the general contractor under this section is not qualified or responsible, the general contractor shall obtain another sub-contractor who is satisfactory to the awarding authority with no adjustment in the general contractor’s price.
(2) If a rejection of all sub-bids, other than as set forth above, for such a sub-trade occurs pursuant to subsection (1) of section forty-four E or subsection (3) of this section, the awarding authority shall state, in an addendum issued with the list of sub-bidders required by said subsection (3), the amount to be included by a general bidder on the general bid form for such sub-trade; and without in any way affecting other sub-bidders who have conformed to the prescribed bidding procedure, new sub-bids for such sub-trade shall be requested forthwith by written invitation to three or more qualified sub-bidders and shall be publicly opened and read by the awarding authority at a time and place to be specified in such invitation. The general contractor shall cause the work covered by such sub-trade to be done by the lowest responsible and eligible sub-bidder against whose standing and ability the general contractor makes no objection or, if there is no such sub-bidder, by such sub-contractor against whose standing and ability the general contractor makes no objection and for such sum as the general contractor and the awarding authority may agree upon; and the contract price shall be adjusted by the difference between the sub-contract sum and the amount stated in the addendum. The general bidder shall include in the cost of his own work on the general bid form all expenses and profits on account of such adjustments.
(b) If, after the selection of the lowest responsible and eligible general bidder, it be decided to consider sub-bidders other than the ones named by such general bidder in his general bid, the awarding authority and such general bidder shall jointly consider all filed sub-bids not rejected under section forty-four F(3). Any agreement to substitute a sub-bid for the one named in the selected general bid shall result in an adjustment of the general bid price by the difference between the amount of the sub-bid originally named and the amount of the sub-bid substituted therefor. If by such substitutions the total adjusted general bid price of the general bidder first selected becomes greater than the original general bid price of the second lowest responsible and eligible general bidder, then the latter shall be selected and his sub-bidders similarly considered. If, by substitutions as hereinbefore provided, the total adjusted general bid price of the second selected general bidder becomes greater than the total adjusted general bid price of the general bidder first selected or greater than the original general bid price of the third lowest responsible and eligible general bidder, then the bidder having the lower of these two general bid prices shall be selected; provided, that if the third lowest responsible and eligible general bidder is selected, his sub-bidders shall be similarly considered. The general bidder finally selected by the aforementioned process of substitutions shall be the general bidder to whom the contract shall be awarded.
(c) If a selected sub-bidder fails, within 5 days, Saturdays, Sundays and legal holidays excluded, after presentation of a subcontract by the general bidder selected as the general contractor, to perform his agreement to execute a subcontract in the form hereinafter set forth with such general bidder, contingent upon the execution of the general contract, and, if required to do so pursuant to the prequalification process under section 44D 3/4 or if requested to do so by such general bidder in the general bid, to furnish a performance and payment bond as stated in his sub-bid such general bidder and the awarding authority shall select, from the other sub-bids duly filed with the awarding authority for such sub-trade and not rejected under section 44H the lowest responsible and eligible sub-bidder at the amount named in his sub-bid as so filed against whose standing and ability the general contractor makes no objection, and the contract price shall be adjusted by the difference between the amount of the sub-bid and the amount of the sub-bid of the delinquent sub-bidder.
The subcontract shall be in the following form:SUBCONTRACT THIS AGREEMENT MADE THIS _________ DAY OF _________, (insert year) by and between _________ a corporation organized and existing under the laws of _________ an individual doing business as _________ hereinafter called the “Contractor” and _________ a corporation organized and existing under the laws of _________ an individual doing business as _________ hereinafter called the “Subcontractor”.
WITNESSETH that the Contractor and the Subcontractor for the considerations hereafter named, agree as follows:1. The Subcontractor agrees to furnish all labor and materials required for the completion of all work specified in Section No. ______________ of the specifications for __________________________ (Name of Sub-Trade) and the plans referred to therein and addenda No. _____________, _________________, _________________, and _________________ for the_________________________________________________ _________________________________________________(complete title of the project and the project number taken from the title page of the specifications) all as prepared by ___________________________________________ (Name of Architect or Engineer) for the sum of ___________ ($___________) and the Contractor agrees to pay the Subcontractor said sum for said work. This price includes the following alternates (and other items set forth in the sub-bid): Alternate No(s). ___________, ___________, ___________, ___________, ___________, ___________, ___________, ___________, ___________, ___________, ___________, ___________, ___________(a) The Subcontractor agrees to be bound to the Contractor by the terms of the hereinbefore described plans; specifications (including all general conditions stated therein) and addenda No. ___, and ___, and ___, and to assume to the Contractor all the obligations and responsibilities that the Contractor by those documents assumes to the ____________________________________ (Awarding Authority) hereinafter called the “Awarding Authority”, except to the extent that provisions contained therein are by their terms or by law applicable only to the Contractor.
(b) The Contractor agrees to be bound to the Subcontractor by the terms of the hereinbefore described documents and to assume to the Subcontractor all the obligations and responsibilities that the Awarding Authority by the terms of the hereinbefore described documents assumes to the Contractor, except to the extent that provisions contained therein are by their terms or by law applicable only to the Awarding Authority.
2. The Contractor agrees to begin, prosecute and complete the entire work specified by the Awarding Authority in an orderly manner so that the Subcontractor will be able to begin, prosecute and complete the work described in this subcontract; and, in consideration thereof, upon notice from the Contractor, either oral or in writing, the Subcontractor agrees to begin, prosecute and complete the work described in this Subcontract in an orderly manner and with due consideration to the date or time specified by the Awarding Authority for the completion of the entire work.
3. The Subcontractor agrees to furnish to the Contractor within a reasonable time after the execution of this subcontract, evidence of workers’ compensation insurance as required by law and evidence of public liability and property damage insurance of the type and in limits required to be furnished to the Awarding Authority by the Contractor.
4. The Contractor agrees that no claim for services rendered or materials furnished by the Contractor to the Subcontractor shall be valid unless written notice thereof is given by the Contractor to the Subcontractor during the first ten (10) days of the calendar month following that in which the claim originated.
5. This agreement is contingent upon the execution of a general contract between the Contractor and the Awarding Authority for the complete work.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the date and year first above-written.
SEAL ATTEST ______________________ _______________________________ (Name of Subcontractor)By ____________________________SEAL ATTEST ______________________ _______________________________ (Name of Contractor)By ____________________________In the event that the contract between the general contractor and the awarding authority does not contain provisions granting to the awarding authority the right to terminate the general contract when the general contractor encounters financial difficulties or fails to make satisfactory progress, the general contractor may insert the following paragraph:If the Subcontractor should be adjudged a bankrupt, or if he should make a general assignment for the benefit of his creditors, or if a receiver should be appointed on account of his insolvency, or if he should persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to supply enough properly skilled workmen or proper materials, or if he should fail to make prompt payment to subcontractors or for material or labor, or persistently disregard laws, ordinances or the instructions of the Contractor, or otherwise be guilty of a substantial violation of any provision of the contract, then the Contractor may, without prejudice to any other right or remedy and after giving the Subcontractor and his surety, if any, seven days’ written notice, terminate the employment of the Subcontractor and take possession of the premises and of all materials, tools and appliances thereon and finish the work by whatever method he may deem expedient. In such case the Subcontractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the contract price shall exceed the expense of finishing the work including compensation for additional architectural, managerial and administrative services, such excess shall be paid to the Subcontractor. If such expense shall exceed such unpaid balance, the Subcontractor shall pay the difference to the Contractor.
The contractor and subcontractor shall have the right to seek damages for breach of a subcontract without terminating the subcontract or ceasing performance thereunder.
All sub-bidders when finally selected shall be notified in writing of their selection within forty-eight hours thereafter by the general bidder.
In each case of substitution of a sub-bidder for a sub-bidder listed in the general bid of the selected general contractor, the selected general contractor may require the substituted sub-bidder to furnish a performance and payment bond, and the premiums for same shall be added to the general bidder’s price for work to be performed by him except where the selected general contractor had indicated in his general bid that the original sub-bidder designated for that sub-trade, in which substitution was made, would be required to furnish such bond.
In the instances enumerated in paragraphs (1), (2) and (3) of this section, the general bidder’s price for work to be performed by him shall also be adjusted by the amount of the change in the premium for the general contractor’s performance bond and his labor and materials or payment bond caused by the substitution.
(5) If a general bidder customarily performs, with employees on his own payroll who are mechanics or laborers as referred to in section twenty-six, a sub-trade for which the awarding authority invites sub-bids, he may submit a sub-bid for such sub-trade which shall be considered on a par with other sub-bids, and he shall also list under the appropriate sub-bid category in his general bid his own name and sub-bid price for such sub-trade. No such sub-bid shall be considered unless the general bidder can show (a) he does so customarily perform such sub-trade, and (b) he is qualified to do the sub-trade work.
In lieu of listing his name and sub-bid price in his general bid, such general bidder may list the name and amount of the lowest responsible and eligible sub-bidder for that sub-trade if (a) such sub-bidder’s price is lower than his, (b) such sub-bid is available for his use; and (c) such sub-bid is not restricted to his use alone or to his use and that of another general bidder, or bidders.
Chapter 149: Section 44G. Allowances; alternates; weather protection devices Section 44G. (A) “Allowance” as used herein means a sum of money covering one or more items of labor or labor and materials which is designated in bid documents and which general bidders are required to use in computing their bids. The use of such allowances shall be prohibited in the award of any contract subject to the provisions of section forty-four A. Whenever the designer is unable to supply specifications for any item prior to the solicitation of bids, such item shall not be included in any contract subject to the provisions of section forty-four A. The awarding authority shall solicit bids for every such item separately pursuant to the provisions of section forty-four A after specifications for that item are prepared.
(B) Every alternate contained in the form for general bids shall be listed in a numerical sequence in order of priority. When the awarding authority decides to consider alternates in determining the lowest eligible and responsible bidder, the awarding authority shall consider the alternates in descending numerical sequence, such that no single alternate shall be considered unless every alternate preceding it on the list has been added to or subtracted from the base bid price.
(C) The use of options other than alternates in bid documents or bid forms subject to section forty-four A shall be prohibited under all circumstances.
(D) Every contract subject to section forty-four A shall include specifications for the installation of weather protection and shall require that the contractor shall install the same and that he shall furnish adequate heat in the area so protected during the months of November through March. Standards for such specifications shall be established by the commissioner or his designee.
Chapter 149: Section 44H. Enforcement Section 44H. Except as otherwise provided by sections 44A to 44H, inclusive, and except for the consideration and determination after contract award as to whether an item is equal to an item named or described in the specifications for a contract, the attorney general or his designee shall enforce sections 44A to 44H, inclusive, of this chapter and section 39M of chapter 30, sections 38C to 38N, inclusive, of chapter 7, and chapter 149A. The attorney general shall have all the necessary powers to require compliance therewith including the power to institute and prosecute proceedings in the superior court to restrain the award of contracts and the performance of contracts in all cases where, after investigation of the facts, he has made a finding that the award or performance has resulted in violation, directly or indirectly, of said sections 44A to 44H, inclusive, or of said section 39M or of said sections 38C to 38N, inclusive, or of said chapter 149A, and he shall not be required to pay the clerk of the court any entry fee in connection with the institution of the proceeding.
Chapter 149: Section 44I. Severability Section 44I. If any provision of sections forty-four A to forty-four H, inclusive, or the application of such provision to any person or circumstance shall be held invalid or unconstitutional, the other provisions of said sections or the application of such provision to any person or circumstance other than that as to which it is held invalid or unconstitutional, shall not be affected thereby.
Chapter 149: Section 44J. Invitations to bid; notice; contents; violations; penalty Section 44J. (1) No public agency or authority of the commonwealth or any political subdivision thereof shall award any contract for which competitive bids are required pursuant to section forty-four A of this chapter or section thirty-nine M of chapter thirty, or for which competitive proposals are required pursuant to subsection (4) of section forty-four E of this chapter or section eleven C of chapter twenty-five A, unless a notice inviting bids or proposals therefor shall have been posted no less than one week prior to the time specified in such notice for the receipt of said bids or proposals in a conspicuous place in or near the offices of the awarding authority, and shall have remained posted until the time so specified, and unless such notice shall also have been published at least once not less than two weeks prior to the time so specified in the central register published by the secretary of state pursuant to section twenty A of chapter nine and in a newspaper of general circulation in the locality of the proposed project. Said notice shall also be published at such other times and in such other newspapers or trade periodicals as the commissioner of capital asset management and maintenance may require, having regard to the locality of the work involved.
(2) Said notice shall specify the time and place where plans and specifications of the proposed work may be had; the time and place of submission of general bids; and the time and place for opening of the general bids. For contracts subject to the provisions of sections forty-four A to H, inclusive, of this chapter, said notice shall also specify the time and place for submission of filed sub-bids, where required pursuant to section forty-four F; and the time and place for opening of said filed sub-bids.
Said notice shall also provide sufficient facts concerning the nature and scope of such project, the type and elements of construction, and such other information as will assist applicants in deciding to bid on such contract.
(3) No contract or preliminary plans and specifications shall be split or divided for the purpose of evading the provisions of this section.
(4) General bids and filed sub-bids for any contract subject to this section shall be in writing and shall be opened in public at the time and place specified in the posted or published notice, and after being so opened shall be open to public inspection.
(5) The provisions of this section shall not apply to any transaction between the commonwealth and any public service corporation.
(6) The provisions of this section may be waived in cases of extreme emergency involving the health and safety of the people and their property, upon the written approval of said commissioner. The written approval shall contain a description of the circumstances and the reasons for the commissioner’s determination.
(7) Whoever violates any provision of this section shall be punished by a fine of not more than ten thousand dollars or by imprisonment in the state prison for not more than three years or in a jail or house of correction for not more than two and one-half years, or by both said fine and imprisonment; and in the event of final conviction, said person shall be incapable of holding any office of honor, trust or profit under the commonwealth or under any county, district of municipal agency.
Each and every person who shall cause or conspire to cause any contract or preliminary plans and specifications to be split or divided for the purpose of evading the provisions of this section shall forfeit and pay to the commonwealth, a political subdivision thereof or other awarding authority subject to this section, the sum of not more than five thousand dollars and, in addition, such person or persons shall pay, apportioned among them, double the amount of damages which the commonwealth or political subdivision thereof or other awarding authority may have sustained by reason of the doing of such act, together with the costs of the action.
(8) If an awarding authority rejects all general bids or does not receive any general bids, and advertises for a second opening of general bids with the original filed sub-bids as set forth in subsection (1) of section forty-four E the notice for receipt of such general bids may be published in the central register and elsewhere as required not less than one week prior to the time specified for such second opening of general bids.
Chapter 149: Section 44K, 44L. Repealed, 1980, 579, Sec. 55 Chapter 149: Section 44M. Energy systems; life-cycle cost estimates Section 44M. As used in this section the following words shall have the following meanings:—“New Building”, an entire building or any addition to an existing building that adds at least ten per cent gross floor space to the building, where the cost of construction is estimated to exceed one hundred thousand dollars.
“Energy system”, any equipment that is employed to heat or cool a building, or to heat hot water used in a building, or to generate electricity for a building and that uses the sun, wind, water, biomass, oil, natural gas, or electricity as its power supply in whole or in part.
“Life cycle cost estimate”, the estimated cost of installing, financing, fueling, maintaining, and replacing an energy system, including the cost of any energy conservation measures to reduce the required capacity or fuel consumption of an energy system.
Every contract for architectural or engineering services necessary for the preliminary design of all new buildings or for the modification or replacement of an energy system in an existing building entered into by a public awarding authority subject to the bidding requirements of sections forty-four A to forty-four L inclusive, of this chapter shall contain a stipulation that life-cycle cost estimates shall be obtained at an initial stage and as a regular part of the services to be performed under said contract.
Prior to the preparation of plans and specifications for the purposes of bidding requirements of said sections forty-four A to forty-four L inclusive, the awarding authority shall ensure that the life-cycle cost estimates have been completed and shall file summaries of said cost estimates with the building code commission and the director of the office of consumer affairs and business regulation. No construction project shall be advertised for bids by any such awarding authority, nor shall any contract for construction be awarded by such authority, nor shall any building permit be issued until said summaries of cost estimates have been filed with the building code commission and with the director of the office of consumer affairs and business regulation and approved by the director of the office of consumer affairs and business regulation.
Any contractor for architectural services necessary to the preliminary design of a new building who fails to obtain life-cycle cost estimates in the performance of a contract containing language which stipulates such, shall be prohibited by the director of the office of consumer affairs and business regulation from contracting, directly or indirectly, with the commonwealth or any political subdivision thereof for similar architectural services for a period of one year from the date of determination of said violation.
The director of the office of consumer affairs and business regulation may offer to all public awarding authorities and other interested parties assistance and training in the performance of the requirements of this section. The director of the office of consumer affairs and business regulation shall promulgate rules and regulations to implement the provisions of this section.
PRIVATE EMPLOYMENT Chapter 149: Section 45. Work on holidays Section 45. Whoever requires an employee to work in any mill or factory on any legal holiday, except to perform such work as is both absolutely necessary and can lawfully be performed on Sunday, shall be punished by a fine of not more than fifteen hundred dollars.
PRIVATE EMPLOYMENT Chapter 149: Section 46. Work for time lost by holidays Section 46. No person shall require or request any employee of a manufacturing or mechanical establishment to work more hours in any one day than is limited by law, in order to make up time lost by reason of a legal holiday.
PRIVATE EMPLOYMENT Chapter 149: Section 47. Sunday work without a day off Section 47. Whoever, except at the request of the employee, requires an employee engaged in any commercial occupation or in the work of any industrial process not subject to the following section or in the work of transportation or communication to do on Sunday the usual work of his occupation, unless he is allowed during the six days next ensuing twenty-four consecutive hours without labor, shall be punished by a fine of not more then three hundred dollars; but this and the following section shall not be construed as allowing any work on Sunday not otherwise authorized by law.
PRIVATE EMPLOYMENT Chapter 149: Section 48. One day of rest in seven; operation of business on Sunday; violations Section 48. Every employer of labor engaged in carrying on any manufacturing, mechanical or mercantile establishment or workshop in the commonwealth shall allow every person, except those specified in section fifty, but including watchmen and employees maintaining fires, employed in such manufacturing, mechanical or mercantile establishment or workshop at least twenty-four consecutive hours of rest, which shall include an unbroken period comprising the hours between eight o’clock in the morning and five o‘clock in the evening, in every seven consecutive days. No employer shall operate any such manufacturing, mechanical or mercantile establishment or workshop on Sunday unless he has complied with section fifty-one. Whoever violates this section shall be punished by a fine of three hundred dollars.
PRIVATE EMPLOYMENT Chapter 149: Section 49. Establishments not subject to Sunday work and rest days; railroads or railways Section 49. Sections forty-seven and forty-eight shall not apply to establishments used for the manufacture or distribution of gas, electricity, milk or water, to hotels, to the transportation of food, nor to the sale or delivery of food by or in establishments other than restaurants. This section shall not apply to railroads or railways as defined in section one of chapter one hundred and sixty.
Chapter 149: Section 5. Investigations of industrial conditions; complaints; prosecutions Section 5. The attorney general may investigate conditions existing in any line of industry, and such investigations may be extended outside of the commonwealth to procure information to promote industrial development or to improve industrial conditions. He shall receive all complaints concerning conditions existing in any industry carried on in the commonwealth, or concerning alleged violations of any laws enforced under his direction, and shall thereupon make or direct all needful and appropriate investigations and prosecutions.
PRIVATE EMPLOYMENT Chapter 149: Section 50. Work not subject to Sunday work and rest days Section 50. Sections forty-seven and forty-eight shall not apply to (a) janitors; (b) employees whose duties include no work on Sunday other than (1) setting sponges in bakeries, (2) caring for live animals, (3) caring for machinery; (c) employees engaged in the preparation, printing, publication, sale or delivery of newspapers; (d) farm or personal service; (e) any labor called for by an emergency that could not reasonably have been anticipated; (f) pharmacists employed in drug stores.
PRIVATE EMPLOYMENT Chapter 149: Section 50A. One day of rest in seven for watchmen and employees maintaining fires, violations Section 50A. Every person employed as a watchman in establishments other than those described in section forty-eight, or employed in maintaining fires in such establishments, but not including janitors in residential apartment houses, shall be allowed at least twenty-four consecutive hours of rest in every seven consecutive days. No provision of any other section of this chapter shall be construed as limiting the rights given by this section. The term “watchman” as used in section forty-eight or the term “watchman” as used in this section shall include guards in banks, as defined in section one of chapter one hundred and sixty-seven. An employer violating this section shall be punished by a fine of three hundred dollars.
PRIVATE EMPLOYMENT Chapter 149: Section 51. Posting list of employees working on Sunday; work on days of rest Section 51. Before operating on Sunday, every employer subject to section forty-eight or fifty A shall post in a conspicuous place on the premises a schedule containing a list of his employees who are required or allowed to work on Sunday, and designating the day of rest for each. No employee shall be required or allowed to work on the day of rest designated for him.
PRIVATE EMPLOYMENT Chapter 149: Section 51A. Exemption for special circumstances; days of rest and Sunday business Section 51A. The attorney general, if it is proved to his satisfaction that special circumstances require an exemption from section forty-eight, may grant such exemption under such conditions as he deems necessary for a period not exceeding sixty days.
PRIVATE EMPLOYMENT Chapter 149: Section 51B. Repealed, 1985, 572, Sec. 6 PRIVATE EMPLOYMENT Chapter 149: Section 52. Time books; violation of statute Section 52. Every employer subject to sections forty-seven and forty-eight shall keep a time book, open to inspection by the department, showing the names and addresses of all employees and the hours worked by each of them in each day. Whoever violates this section or section fifty-one shall be punished by a fine of three hundred dollars.
PRIVATE EMPLOYMENT Chapter 149: Section 52A1/2. Veterans; participation in Veterans or Memorial Day exercise; leave of absence granted; exceptions Section 52A1/2. Any employee who is a veteran as defined in clause Forty-third of section seven of chapter four or is a member of a department of war veterans listed in section seventeen of chapter eight and who desires to participate in a Veterans Day or Memorial Day exercise, parade or service shall be allowed and granted a leave of absence, with or without pay at the discretion of an employer, of sufficient time to participate in such services in their community of residence.
This section shall not apply to employees whose services are essential and critical to the public health or safety and determined to be essential to the safety and security of each such employer or property thereof.
PRIVATE EMPLOYMENT Chapter 149: Section 52A. Ready reserve; absence from work for military training; non-compliance Section 52A. Any member of an organized unit of the ready reserve of the armed forces, who, in order to receive military training with the armed forces of the United States not exceeding seventeen days in any one calendar year, leaves a position other than a temporary position in the employ of any employer, and who shall give notice to his employer of the date of departure and date of return for the purposes of military training, and of the satisfactory completion of such training immediately thereafter, and who is still qualified to perform the duties of such position, shall be entitled to be restored to his previous, or a similar, position with the same status, pay and seniority, and such period of absence for military training shall be construed as an absence with leave and, within the discretion of the employer, said leave may be with or without pay.
Such absence for military training shall not affect the employee’s right to receive normal vacation, sick leave, bonus, advancement and other advantages of his employment normally to be anticipated in his particular position.
If any employer fails to comply with any of the provisions of this section, the employee may, at his election, bring an action at law for damages for such non-compliance or apply to the courts for such equitable relief as may be just and proper under the circumstances.
PRIVATE EMPLOYMENT Chapter 149: Section 52B. Employment applications; volunteer work as experience Section 52B. Every application for employment which requires the applicant to set forth his experience history shall contain a statement that the applicant may include in such history any verified work performed on a volunteer basis.
PRIVATE EMPLOYMENT Chapter 149: Section 52C. Personnel records; review by employee; corrections; penalty Section 52C. As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:—“Employee”, a person currently employed or formerly employed by an employer; provided, however, that for purposes of this section, persons who are employed, or were formerly employed, by a private institution of higher education in positions which may lead to tenure, are tenured, or which involve responsibilities similar to those in tenure-track positions, shall not be considered employees.
“Employer”, an individual, corporation, partnership, labor organization, unincorporated association or any other legal business, public or private, or commercial entity including agents of the employer.
“Personnel record”, a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership or other association that has a contractual agreement with the employer to keep or supply a personnel record as provided in this section. A personnel record shall not include information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of such other person’s privacy. Without limiting the applicability or generality of the foregoing, all of the following written information or documents to the extent prepared by an employer of twenty or more employees regarding an employee shall be included in the personnel record for that employee: the name, address, date of birth, job title and description; rate of pay and any other compensation paid to the employee; starting date of employment; the job application of the employee; resumes or other forms of employment inquiry submitted to the employer in response to his advertisement by the employee; all employee performance evaluations, including but not limited to, employee evaluation documents; written warnings of substandard performance; lists of probationary periods; waivers signed by the employee; copies of dated termination notices; any other documents relating to disciplinary action regarding the employee. A personnel record shall be maintained in typewritten or printed form or may be handwritten in indelible ink.
Any employer receiving a written request from an employee shall provide the employee with an opportunity to review his personnel record within five business days of such request. The review shall take place at the place of employment and during normal business hours. An employee shall be given a copy of his personnel record within five business days of submission of a written request for such copy to his employer.
If there is a disagreement with any information contained in a personnel record, removal or correction of such information may be mutually agreed upon by the employer and the employee. If an agreement is not reached, the employee may submit a written statement explaining the employee’s position which shall thereupon be contained therein and shall become a part of such employee’s personnel record. The statement shall be included when said information is transmitted to a third party as long as the original information is retained as part of the file. If an employer places in a personnel record any information which such employer knew or should have known to be false, then the employee shall have remedy through the collective bargaining agreement, other personnel procedures or judicial process to have such information expunged. The provisions of this section shall not prohibit the removal of information contained in a personnel record upon mutual agreement of the employer and employee for any reason.
An employer of twenty or more employees shall retain the complete personnel record of an employee as required to be kept under this section without deletions or expungement of information from the date of employment of such employee to a date three years after the termination of employment by the employee with such employer. In any cause of action brought by an employee against such employer of twenty or more employees in any administrative or judicial proceeding, including but not limited to, the Massachusetts Office of Affirmative Action, the Massachusetts Commission Against Discrimination, Massachusetts Civil Service Commission, Massachusetts Labor Relations Commission, attorney general, or a court of appropriate jurisdiction, such employer shall retain any personnel record required to be kept under this section which is relevant to such action until the final disposition thereof.
If an employer of twenty or more employees elects to have a written personnel policy regarding the terms and conditions of employment, such personnel policy, as the same may be amended from time to time, shall be continuously maintained at the office of such employer where personnel matters are administered.
Whoever violates the provisions of this section shall be punished by a fine of not less than five hundred nor more than twenty-five hundred dollars. This section shall be enforced by the attorney general.
PRIVATE EMPLOYMENT Chapter 149: Section 52D. Family and medical leave; enforcement Section 52D. (a) As used in this section, terms shall have the meanings assigned to them by the federal act, notwithstanding any contrary provision of section 1 of this chapter. In addition, the following terms shall have the following meanings:“Elderly relative”, an individual of at least 60 years of age who is related by blood or marriage to the employee, including a parent.
“Federal act”, sections 101 to 105, inclusive, of the Family and Medical Leave Act of 1993, 29 U.
S.
C. sections 2611 to 2615, inclusive, as it may be amended.
“School”, a public or private elementary or secondary school; a Head Start program assisted under the Head Start Act, 42 U.
S.
C. sections 9831 et seq.
; and a children’s day care facility licensed under chapter 28A.
(b) An eligible employee shall be entitled to a total of 24 hours of leave during any 12-month period, in addition to leave available under the federal act, to:(1) participate in school activities directly related to the educational advancement of a son or daughter of the employee, such as parent-teacher conferences or interviewing for a new school;(2) accompany the son or daughter of the employee to routine medical or dental appointments, such as check-ups or vaccinations; and(3) accompany an elderly relative of the employee to routine medical or dental appointments or appointments for other professional services related to the elder’s care, such as interviewing at nursing or group homes.
(c) Unless this section provides otherwise, the terms of the federal act shall apply to leave under this section. As provided in section 102(d)(2)(A) of the federal act, 29 U.
S.
C. section 2612(d)(2)(A), an eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee for any of the leave provided under this section, but nothing in this section shall require an employer to provide paid sick leave or paid medical leave in any situation in which the employer would not normally provide any such paid leave. Leave under this section may be taken intermittently or on a reduced leave schedule.
(d) If the necessity for leave under this section is foreseeable, the employee shall provide the employer with not less than seven days’ notice before the date the leave is to begin. If the necessity for leave is not foreseeable, the employee shall provide such notice as is practicable.
(e) An employer may require that a request for leave under this section be supported by a certification issued at such time and in such manner as the attorney general may by regulation require.
(f) The attorney general shall enforce this section, and may obtain injunctive or declaratory relief for this purpose. Violation of this section shall be subject to the second paragraph of section 150 and to section 180.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 53, 53A. Repealed, 1980, 131, Sec. 2 WORK BY WOMEN AND CHILDREN Chapter 149: Section 54. Core rooms where workers employed; investigations; regulations; violations Section 54. The attorney general shall investigate core rooms where workers are employed, and shall make rules regulating the employment of workers therein. The rules shall relate to the structure and location of the rooms, the emission of gases and fumes from ovens, and the size and weight which the workers shall be allowed to lift or work on. A copy of the rules shall be posted in every core room where workers are employed. Whoever violates any such rule shall be punished by a fine of not less than one hundred nor more than three thousand dollars.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 55. Repealed, 1974, 345 WORK BY WOMEN AND CHILDREN Chapter 149: Section 56. Hours of work; posting notices; making up time lost by stoppage of machinery; employment by shifts; minors employed on farms Section 56. No minor shall be employed or permitted to work in, or in connection with, any factory or workshop, or any manufacturing, mercantile or mechanical establishment, telegraph office or telephone exchange, or any express or transportation company, or any private club, or any office, letter shop or financial institution, or any laundry, hotel, manicuring or hairdressing establishment, or any motion picture or other theatre or any other place of amusement, or any garage, or any hospital in a nonprofessional capacity, or in any beauty culture, weight reducing or other similar establishment, or be employed as an elevator operator, or as a switchboard operator in a private exchange, or in domestic service in the home of the employer, more than nine hours in any one day, and, except as to transportation or telephone companies, and except as to hotels, private clubs and places of amusement where the employment is determined by the attorney general to be by seasons, and except as to hotels where meals are served only during three separate periods totalling not more than seven hours in any one day and the employment is connected with the serving of said meals, if the work so performed by such a minor in one day is not continuous, but is divided into two or more periods, the work of such minor shall be so arranged that all such periods of work shall fall within a period of not exceeding ten consecutive hours, except that in the case of mercantile establishments such periods of work may fall within a period of not exceeding eleven and one-half consecutive hours during a total of not more than seven days in any calendar year of which six shall be six weekdays within a period of four weeks immediately preceding Christmas and the seventh the Saturday immediately preceding Easter, except that in any place of employment where the principal source of income of certain employees is in tips or gratuities, upon the written petition of not less than sixty per cent of such employees, the attorney general may allow such periods of work to fall within a period not exceeding twelve consecutive hours; and in no case shall the hours of labor exceed forty-eight in a week, except that in manufacturing establishments or hotels where the employment is determined by the department to be by seasons, the number of such hours in any week may exceed forty-eight, but, except in the work of fish processing when necessary in the judgment of the attorney general, and then only during the months of June, July, August, September and October, shall not exceed fifty-two, provided that the total number of such hours in any year shall not exceed an average of forty-eight hours a week for the whole year, excluding Sundays and holidays; and if any minor shall be employed or permitted to work in more than one such place, the total number of hours of such employment shall not exceed forty-eight hours in any one week. The hours of labor of nonprofessional employees in a nursing or convalescent home, or rest home, or charitable home for the aged shall not exceed forty-eight hours in any one week. The attorney general may grant authority for office workers to exceed nine hours of labor in any one day; provided, that the hours of labor of such workers shall not exceed forty-eight in a week. Every employer, except those hereinafter designated, and except employers of persons in domestic service in the employer’s home, shall post and keep posted in such manner as the attorney general may require in a conspicuous place in every room where such persons are employed a printed notice stating the number of hours’ work required of them on each day of the week, the hours of beginning and stopping work, and the hours when the time allowed for meals begins and ends, or, in case of mercantile establishments and of establishments exempted from section one hundred, the time, if any, allowed for meals. The employment of any such person at any time, other than as stated in said printed notice, shall be deemed a violation of this section unless such employment was to make up time lost on a previous day of the same week by reason of stopping, for not less than thirty consecutive minutes, of machinery upon which such person was employed or dependent for employment and unless a written report of the date, hour and duration of the stopping of such machinery is sent to the attorney general within forty-eight hours of its occurrence; nor shall such overtime employment be authorized because of the stopping of machinery for the celebration of any holiday. Every employer engaged in furnishing public service, or in any other kind of business in respect to which the attorney general shall find that public necessity or convenience requires the employment of minors by shifts during the different periods or parts of the day, shall post and keep posted in such manner as the attorney general may require in a conspicuous place in every room where such persons are employed a printed notice stating separately the hours of employment for each shift or tour of duty and the amount of time allowed for meals. A list by name of the employees, stating in which shift each is employed, shall be kept on file at each place of employment for inspection by employees and by officers charged with enforcement of this law. In cases of extraordinary emergency or extraordinary public requirement, this section shall not apply to employers engaged in public service or in other kinds of business in which shifts may be required as hereinbefore stated, but no such emergency or public requirement shall justify a variance from the preceding requirements of this section until a written report of the day and hour of its occurrence and its duration is sent to the department. This section shall not apply to persons who are declared by the attorney general to be employed in a professional, executive, administrative or supervisory capacity or as personal secretaries. The attorney general may grant authority for employees of hospitals to be employed for more than nine hours in one day and forty-eight hours in one week and outside of a period of ten consecutive hours, or for employees of nursing or convalescent homes, rest homes and charitable homes for the aged to be employed for more than forty-eight hours in one week, if he finds that an emergency exists.
Notwithstanding any other provision of this chapter, no minor under fourteen shall be employed in service on a farm for a total of more than four hours in any one day nor more than a total of twenty-four hours in any one week, except that the provisions of this paragraph shall not apply to the employment of a minor under fourteen who is related by blood or marriage to the owner or operator of the farm on which such minor is employed.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 57. Employment in violation of statute Section 57. A parent or guardian who permits a child under his control to be employed in violation of the preceding section, and any person who, either for himself or as superintendent, overseer or agent for another, employs any person in violation of said section, or fails to post or keep posted any notice as required by it, or makes a false report of the stopping of machinery, shall be punished by a fine of not less than fifty nor more than one hundred dollars.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 58. Elevator operators Section 58. Any law restricting the hours of minors laboring in factories or workshops, or in mercantile, manufacturing or mechanical establishments shall, unless it is otherwise expressly provided, apply to minors operating elevators in such establishments, or in any building occupied in whole or in part by any such establishment, or in any office building.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 59. Repealed, 1974, 371, Sec. 1 Chapter 149: Section 6. Safety devices and means to prevent accidents and diseases generally; fees for structural painting Section 6. The department shall or the attorney general may investigate, from time to time, employments and places of employment, including, but not limited to, such places where temporary personnel and material elevators are used in construction, reconstruction or renovation of buildings, but excluding places of employment of persons engaged in domestic service in the home of the employer, and determine what suitable safety devices or other reasonable means or requirements for the prevention of accidents shall be adopted or followed in any or all such employments or places of employment; and also shall or the attorney general may determine what suitable devices or other reasonable means or requirements for the prevention of industrial or occupational diseases shall be adopted or followed in any or all such employments or places of employment; and shall make reasonable rules, regulations and orders for the prevention of accidents and the prevention of industrial or occupational diseases, and rules and regulations pertaining to structural painting made hereunder may provide for the payment of reasonable fees.
The rules and regulations for elevators and for suitable safety devices or other reasonable means or requirements for the prevention of accidents shall also be applicable to self-employed and individual contractors who themselves work at the trade as well as to employees.
Whoever violates any rule, regulation or requirement made by the department under authority hereof shall be punished by a fine of not more than one thousand dollars for each offense. The department or its representative or any person aggrieved, any interested party or any officer of any labor union or association, whether incorporated or otherwise, may file a written complaint with the district court in the jurisdiction of which the violation occurs.
The provisions of this section and of sections three and five shall not apply to any employment or place of employment subject to the provisions of section twenty-eight of chapter seven.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 60. Children under sixteen in general; school hours; night work; plays or musical comedies; fashion shows; hospitals Section 60. No person shall employ a child under sixteen years of age, or permit him to work in, about or in connection with any factory, workshop, manufacturing or mechanical establishment at any time.
Except as provided in sections sixty-nine and eighty-six, no person shall employ a child under sixteen years of age, or permit him to work in, about or in connection with any mercantile establishment, barber shop, bootblack stand or establishment, stable, elsewhere than on a farm, garage, brick or lumber yard, telephone exchange, telegraph or messenger office, place of amusement, or in the construction or repair of buildings, or in any radio broadcasting station except as talent. Except as provided in sections sixty-nine and eighty-six, no such child shall be employed at work performed for wage or other compensation, to whomever payable, during the hours when public schools are in session, nor, except as provided in section sixty-nine, and except that such child may be employed as a golf caddie during daylight hours, shall he be employed at work before half past six o’clock in the morning or after six o’clock in the evening.
This section and section eighty-six shall not be deemed to prohibit children under sixteen from taking part on the stage for a limited period in a play or musical comedy in a theatre wherein not more than two performances are given in any one day and not more than eight performances are given in any one week if the attorney general, after being satisfied that the supervision of such children is adequate, that their living conditions are healthful, and that their education is not neglected, gives his written consent to such taking part.
This section shall not prevent participation of a child under fifteen years of age in a fashion show, provided such child is accompanied by either one of his parents.
This section and section eighty-six shall not be deemed to prohibit children fourteen to sixteen years of age from voluntarily performing services in a nonprofit hospital after regular school hours, and before eight o’clock post meridian, nor shall this section and section eighty-six be deemed to prohibit children thirteen years of age from voluntarily performing services in a nonprofit hospital after regular school hours, and before half past five o’clock post meridian.
Children between the ages of thirteen and sixteen years who voluntarily perform services in a nonprofit hospital shall, as a condition of providing such service, be provided with an orientation by said hospital and be supervised while providing services which are performed voluntarily.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 61. Minors under sixteen; particular employments Section 61. No person shall employ a minor under sixteen or permit him to work in operating or assisting in operating any of the following machines: (1) Circular or band saws or ensilage cutters, which shall include any such saw or cutter on a farm, except with respect to a minor under sixteen who is related by blood or marriage to the owner or operator of the farm on which such minor is employed or permitted to work, (2) wood shapers, (3) wood jointers, (4) planers, (5) picker machines or machines used in picking wool, cotton, hair or other material, (6) paperlace machines, (7) leather burnishing machines, (8) job or cylinder printing presses operated by power other than foot power, (9) stamping machines used in sheet metal and tinware or in paper or leather manufacturing or in washer and nut factories, (10) metal or paper cutting machines, (11) corner staying machines in paper box factories, (12) corrugating rolls such as are used in corrugated paper or in roofing, or washboard factories, (13) steam boilers, (14) dough brakes or cracker machinery of any description, (15) wire or iron straightening or drawing machinery, (16) rolling mill machinery, (17) power punches or shears, (18) washing or grinding or mixing machinery, (19) calendar rolls in paper and rubber manufacturing or other heavy rolls driven by power, (20) laundering machinery, (21) upon or in connection with any dangerous electrical machinery or appliances, or in adjusting or assisting in adjusting any hazardous belt to any machinery, or in oiling or cleaning hazardous machinery, or in proximity to any hazardous or unguarded belts, machinery or gearing while such machinery or gearing is in motion; or in scaffolding; or in heavy work in the building trades; or in stripping, assorting, manufacturing or packing tobacco; or in any tunnel; or in a public bowling alley; or in a pool or billiard room; or in any capacity on moving motor vehicles; or in any gasoline service establishment; provided, however, that such minor may be employed solely to dispense gasoline and oil and to provide courtesy service outside of the service bay area of any such gasoline service establishment.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 62. Minors under eighteen Section 62. No person shall employ a minor under eighteen or permit him to work: (1) in or about blast furnaces; (2) in the operation or management of hoisting machines; (3) in oiling or cleaning hazardous machinery in motion; (4) in the operation or use of any polishing or buffing wheel; (5) at switch tending; (6) at gate tending; (7) at track repairing; (8) as a brakeman, fireman, engineer, motorman or conductor upon a railroad or railway; (9) as a fireman or engineer upon any boat or vessel; (10) in operating motor vehicles of any description, except golf carts on a golf course if the minor is licensed to operate a motor vehicle, and except in the course of employment in an automobile repair shop; (11) in or about establishments wherein gunpowder, nitroglycerine, dynamite or other high or dangerous explosive is manufactured or compounded; (12) in the manufacture of white or yellow phosphorous or phosphorous matches; (13) in any distillery, brewery, or any other establishment where alcoholic beverages, as defined in section one of chapter one hundred and thirty-eight, are manufactured, packed, wrapped or bottled; (14) in that part of any hotel, theatre, concert hall, place of amusement or other establishment where intoxicating liquors are sold; (15) in any room or other subdivision of a building at a height of more than thirty feet above the floor of such room or other subdivision, or in any other place at a height of more than thirty feet above the ground level or water level, as the case may be; in the operation or management of any type of elevator other than a self-service elevator, as defined in the regulations of the board of elevator regulations and duly filed with the office of the state secretary, or in the cleaning or repairing of any type of elevator. This section shall not prohibit the employment of minors in drug stores or retail food stores, nor shall it prevent the employment of a minor, to whom has been issued a license to operate motor vehicles, in the operation on a farm, or on a way for a distance not exceeding ten miles therefrom, of any truck, tractor, trailer or self-propelled agricultural instrument registered by a farmer under chapter ninety, nor in the operation of any vehicle not registered in accordance with the provisions of section nine of said chapter ninety if such vehicle is used exclusively for agricultural purposes.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 62A. Employment of vocational agricultural students Section 62A. The provisions of sections sixty-one and sixty-two prohibiting the employment of certain minors shall not prohibit the employment of minors fourteen years of age and older to operate, or to assist in the operation of, small power equipment of the kind utilized by home gardeners nor shall it prohibit the operation of a farm tractor operated on a farm; provided, that such minors under the age of sixteen have been certified as having satisfactorily completed a training program in vocational agriculture by the department of education. The provisions of section sixty-two shall not prohibit the employment of minors sixteen years of age or older, consistent with federal law; provided, that such minors are enrolled in a course of study and training in a co-operative vocational training program, including co-operative agricultural programs, under a state or local authority; and provided, further, that such minors are employed under written agreements, that the work of such minors shall be incidental to their training, that such work shall be intermittent and for short periods of time, shall be under the direct and close supervision of a qualified and experienced person and that safety instruction given in any such course shall be correlated by the employer with on-the-job training. The provisions of sections sixty-one and sixty-two prohibiting the employment of certain minors shall not prohibit the employment of minors who are graduates of trade or vocational high schools; provided that such minors are employed in the same occupation as they were trained for in such trade or vocational school.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 63. Dangerous or injurious employment of minors; hearing and determination Section 63. The attorney general may, after a hearing duly held, determine whether or not any particular trade, process of manufacture or occupation, in which the employment of minors under the age of sixteen or eighteen is not forbidden by law, or any particular method of carrying on such trade, process of manufacture or occupation, is sufficiently dangerous or is sufficiently injurious to the health or morals of minors under sixteen or eighteen to justify their exclusion therefrom. Employment of a minor between the ages of sixteen and eighteen in a facility licensed under section twenty-seven of chapter ten or under section three of chapter one hundred and twenty-eight A shall not be determined to be injurious to the morals of minors. No minor under sixteen or eighteen shall be employed or permitted to work in any trade, process or occupation thus determined to be dangerous or injurious to such minors, respectively.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 64. Employment of minors where liquor sold; taking or sending minors to immoral places Section 64. No person shall employ a minor or permit him to work in, about or in connection with any saloon or bar room where alcoholic liquors are sold. No person shall knowingly take or send any such minor or cause or permit him to be sent to any disorderly house or house of prostitution or assignation or other immoral place of resort or amusement.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 65. Hours and days of, and time for, work of minors under sixteen; time in continuation school or courses of instruction Section 65. No person shall employ a minor under sixteen, or permit him to work, in any occupation for which a permit for employment is required, for more than six days in any one week, or more than forty-eight hours in any one week, or more than eight hours in any one day, or, except as provided in section sixty-nine, before half past six o’clock in the morning, or after seven o’clock in the evening, except from July first through Labor Day, when evening hours shall be extended to nine o’clock in the evening. If the work performed by any such minor in a day is not continuous, but is divided into two or more periods, the person employing such minor shall so arrange such minor’s work that all such periods of work shall fall within a period of nine consecutive hours. The time spent by such a minor in a continuation school or course of instruction as required by section twenty-two of chapter seventy-one shall be reckoned as a part of the time he is permitted to work.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 66. Time of work for boys and girls under eighteen, and between sixteen and eighteen in restaurants Section 66. No person shall employ a boy or a girl under eighteen or permit such boy or girl to work in, about or in connection with any establishment or occupation named in section fifty-six or sixty before six o’clock in the morning, or after ten o’clock in the evening; provided, that boys or girls under eighteen may be employed as operators in regular service telephone exchanges or telegraph offices until, but not after, eleven o’clock in the evening; and provided further, that boys or girls between the ages of sixteen and eighteen may be employed in restaurants and race tracks until, but not after, twelve o’clock in the evening on Fridays and Saturdays and during school vacation periods, excepting the last day of such vacation period.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 67. Days and hours of work for boys or girls under eighteen Section 67. Except as limited by section fifty-six, no person shall employ a boy or a girl under eighteen or permit such a boy or girl to work in, about or in connection with any establishment or occupation named in section fifty-six or sixty for more than six days in a week, or more than forty-eight hours in a week, or more than nine hours in a day, and, if the work performed by such boy or girl in a day is not continuous but is divided into two or more periods, the person employing such boy or girl shall so arrange his or her work that all such periods shall fall within a period of twelve consecutive hours.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 68. Time for work of minor messengers Section 68. Except for the delivery of messages directly connected with the business of conducting or publishing a newspaper to a newspaper office or directly between newspaper offices, no person shall employ a minor or permit him to work as messenger for a telegraph, telephone or messenger company in the distribution, transmission or delivery of goods or messages before five o’clock in the morning or after ten o’clock in the evening.
WORK BY WOMEN AND CHILDREN Chapter 149: Section 69. Children as newspaper vendors; restrictions; penalty Section 69. No boy or girl under twelve shall sell, expose or offer for sale any magazines, periodicals or any other articles of merchandise of any description, or exercise the trade of bootblack or scavenger, or any other trade, in any street or public place.
A boy or girl nine years of age or older may engage or be employed in any city or town in the sale or delivery of newspapers; provided, however, that the publisher or distributor of the newspapers provides the boy or girl with written policies regarding the activities and responsibilities of the boy or girl and of the publisher or distributor; provided, further, that the publisher or distributor provides an orientation and training program for the boy or girl before he or she undertakes responsibility for newspaper sales or delivery; and provided further that the boy or girl provides the publisher or distributor with a written statement of permission to sell or deliver newspapers from a parent or guardian, said parent or guardian having previously reviewed the policies of the newspaper relative to sales or delivery.
No child shall be so employed during the hours that the public schools in the city or town in which such boy or girl resides are in session nor before six o&r
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