By: Christopher W. Morog and Robert T. Ferguson, Jr.

In a recent press release, the Office of the Attorney General (AG) announced that it has cited a Massachusetts paving company and its three owners for alleged violations of prevailing wage and recordkeeping requirements. The AG seeks more than $1.2 million in restitution and damages. The state’s investigation and aggressive enforcement of alleged prevailing wage violations should not come as a surprise. Rather, the case is noteworthy because of the company’s allegedly improper recordkeeping and deficient response to the AG’s investigative demands.

Having received several complaints from current and former employees of the company, the AG’s Fair Labor Division commenced an investigation in 2019 to determine whether the company had properly paid prevailing wages. As many of you are aware, violations of certain state labor and wage laws cannot only result in liability for the company, but can also lead to civil and criminal liability for certain individuals within the company. When it comes to compliance with these laws, the AG strongly supports the interests of Massachusetts employees.

In this case, the AG’s investigators determined that the company had allegedly underpaid 22 workers for work performed on various public projects in Massachusetts. The AG also concluded that the company had failed to submit true and accurate certified payroll records for work performed for various Massachusetts towns.

As part of its investigation, the AG demanded that the company produce its certified payroll and timekeeping records. But according to the AG, the company failed to produce certain requested records. Not only that, the records that the company did produce were incomplete or missing information and also contained errors or other omissions.

As noted in the press release, employers are required to maintain proper records and must provide their records to the AG upon demand. A failure to do so “is considered a violation of state law,” as is submission of records that lack the required information.

In light of the perceived wage violations and deficient response to the AG’s investigative demands, the AG issued a total of 25 citations to the company as well as its President, Manager, and Treasurer.

Compliance with the requirements of applicable labor and wage laws is critical. This means more than just timely payment of the required wages. Proper recordkeeping, as well as appropriate responses to a state investigative demand are equally as important. Employers must be able to demonstrate their compliance through accurate, complete, and diligent recordkeeping. Sloppy, disorganized, or lackluster responses to an AG investigation can needlessly inject doubt as to whether the employer complied with the letter of the law (or is appropriately cooperating with the investigation). Immediate and careful factual and legal attention is required in response to an AG investigative demand as a critical step in the defense of alleged violations.