Worker’s Compensation- Private Right of Action in Massachusetts


Workers’ compensation benefits are exclusively for employees who are either injured or killed during work hours. Employees may not sue employers for damages other than work related injuries or illnesses. The employee is required to show a written notice to the employer and show him or her the claims of right of action.

The rights of action are under the common law either at hire or within 30 days of the time that the employer obtains insurance or becomes a self-insurer. The employee may sue in court if the employer does not have workers’ compensation insurance.

Massachusetts Private Right of Action

 On August 9th, 2010, the Massachusetts Governor Patrick signed a law into an amendment to the state’s workers’ comp statute which allows employees to sue employers for violations of the statute. The law gives an incentive for employees to seek recovery for any unpaid insurance premiums that should be covered by the company’s workers’ comp plan. This includes misclassified individuals who identify as independent contractors. The law also allows a private attorney’s general’s action if the employer fails to maintain a workers’ compensation insurance plan.

How to File

Any lawsuit must be brought by three people, who could either be individuals or other businesses. The individuals must provide a written notice with the complaint, including a statement on their intent to file suit, to the employer and insurer who is entitled to collect unpaid amounts. Lawsuits must be filed after 90 days after the delivery of the notice.

If the plaintiffs show the employer violated workers’ compensation statute, the employee is entitled to recover:

  • 25% of the unpaid amount (or $25,000);
  • An additional $25,000 or 25% of the unpaid amount as compensatory and liquidated damages, and
  • Costs and attorney’s fees. The majority of the recovered amounts is deposited into the Workers’ Compensation Trust Fund.

What Happens Next

The insurer that has failed to file the complaint or seek arbitration to cover unpaid premiums is blocked from future recovery claims. This applies unless the plaintiffs can provide evidence of written consent. However, if consent is readily available, the court can substitute the insurer as the plaintiff, and the case proceeds without regard to the law.

The Massachusetts Department of Industrial Accidents (DIA) continuously has the responsibility to authorize statement issues to stop worker orders. In addition, the DIA is responsible for assessing civil and criminal penalties for violations of the workers’ compensation policy. Employers should be more cautious that ignoring their obligation to provide workers’ comp coverage is risky since the law allows individuals the right to seek enforcement of the claim. The law creates a basis for plaintiffs’ lawyers to challenge misclassifications of individuals as independent contractors, since individual employees are not covered by workers’ compensation insurance.

For more information regarding workers’ compensation insurance coverage, check out our blog!

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