168 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP from the Attorney General.1023 The complaint form permits an employee to indicate that he or she wishes to sue privately, which will cause the Attorney General’s Office to issue a right to sue letter without any further investigation.1024 However, as discussed in the preceding section, the failure to first file a complaint with the Attorney General is not a jurisdictional bar to a private lawsuit. B. The Attorney General’s Investigatory Procedure The Massachusetts Office of the Attorney General may take several weeks or longer to process a complaint.1025 Following receipt of a complaint, the Attorney General notifies the employer of the allegations.1026 Oftentimes, these notifications are not specific and do not provide the employer with any details regarding the allegations made against it. Typically, the Office of the Attorney General will request payroll records and other documents, such as policies, from the employer. Pursuant to the Attorney General’s authority to investigate wage complaints and ensure compliance with the laws, the Attorney General also may conduct work site inspections.1027 These inspections can be conducted without prior notice. An employer should retain counsel immediately, upon being notified of a complaint, because the Attorney General may investigate any additional violations that are uncovered during its investigation. If the Attorney General’s Office determines that a wage and hour violation has occurred, it can issue a citation that requires restitutionary payments to the complainant (or to a larger group of similarly situated employees) and impose a fine. The Attorney General also has the authority to pursue a criminal investigation that could lead to criminal charges, which are detailed in the following section. During the course of the investigation, the employer’s counsel may negotiate a resolution of the dispute with the Attorney General’s Office. C. Criminal Penalties As explained above, the Office of the Attorney General has the authority to pursue criminal violations. While criminal punishments are exceedingly rare in the wage and hour context, the Attorney General has discretion to pursue criminal prosecution where an employer has committed previous offenses and the present violation is willful.1028 In one recent case, two 1023 Id. 1024 Office of the Massachusetts Attorney General, File a Workplace Complaint, available at https://www.mass.gov/how-to/file-aworkplace-complaint (last visited Mar. 6, 2025). 1025 Id. 1026 Id. 1027 For example, prior to the COVID-19 pandemic, the Fair Labor Division conducted 165 site visits in fiscal year 2019. See, e.g., Attorney General Maura Healey’s 2019 Labor Day Report, available at https://www.mass.gov/doc/ags-labor-day-report2019/download (last visited Mar. 6, 2025). In 2022, the Fair Labor Division resumed the practice of unannounced site visits, particularly in the construction industry. See, e.g., Attorney General Maura Healey’s 2022 Labor Day Report, available at https://www.mass.gov/doc/labor-day-report-2022/download (last visited Mar. 6, 2025). 1028 M.G.L. ch. 149, § 27C(a)(1)-(2). While no court has defined willfulness in the criminal context, the SJC found harsher civil penalties for wage violations to be appropriate where the defendant’s behavior was “outrageous, because of the defendant’s evil
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