Massachusetts Enacts Private Right of Action to Enforce Workers’ Compensation

Under the new amendment, three private citizens can bring an action against an employer for failing to make contributions to a workers’ compensation insurance plan. In order to bring a private action, the individuals must first provide written notice to the employer and insurer of the substance of the action with notice of their intention to file suit. Upon the expiration of 90 days from the delivery of this notice, they can then commence a private civil action. In addition, the individuals do not need to be employees to bring an action, which would mean that a competitor or union could bring the action.

There are incentives to bring these actions, as the three plaintiffs could recover: (a) 25% of the unpaid amount or $25,000.00, whichever is less; (b) an additional $25,000.00 or 25% of the unpaid amount as compensatory and liquidated damages, again, whichever is less; and (c) costs and attorneys’ fees.

With the recent emphasis on the misclassification of independent contractors as employees, this new amendment to the workers’ compensation law further increases the potential risk of independent contractor misclassification claims. We are available to discuss the requirements of the Massachusetts workers compensation laws and the requirements imposed on all employers, as well as reviewing other insurance coverage protecting your business to see if you are adequately insured as to business and other risks and to adequate limits.