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Bill H.2090
Whereas the employment of workers on a remote or virtual basis has grown exponentially in the last decade;
And whereas the provision of remote services and labor has become a staple of contemporary employment and has proven invaluable to employers in securing a stable and productive workforce, employees in providing an added benefit without hampering productivity, and the Commonwealth in public health and other state emergencies, by facilitating “shelter-in-place” and “stay-at-home” orders without hampering the Commonwealth’s economic development or productivity;
The Legislature enacts the following Act:
SECTION 1: The Legislature hereby amends Chapter 149 of the Massachusetts General Laws by inserting Section 204 after Section 203:
A. Definitions.
Employer. For the purposes of this section, an employer is any individual, corporation, partnership, or other private or public entity, including any agent or officer having the management of such entity, that is incorporated in, headquartered in, and/or operates in the Commonwealth, including the Commonwealth itself, its instrumentalities, political subdivisions, their instrumentalities, any instrumentality of more than one of the foregoing, and any instrumentality of any of the foregoing and one or more other states or political subdivisions, who engages the services of a Remote Employee, as defined in this section, for wages, remuneration or other compensation, except the United States government and the government of any other country shall not be considered an Employer.
Remote Employee. A remote employee is an individual who otherwise meets the definition of “employee” in G.L. c. 149, § 148B(a), who is hired to perform any labor or provide service for an Employer, as defined in this section, that includes reporting to and transmitting work product to that Employer virtually (including but not limited to by telephone, video, website, or internet application), and not by in-person means, regardless of where the work is physically performed.
Additionally, where a work transmitted virtually is made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning Employer obtains ownership of all the rights comprised in the copyright in the work, the individual drafting the work for hire, in whole or in part, is included in this definition of Remote Employee.
B. Absent A Clear and Unmistakable Contractual Waiver, an affirmative choice of law of another jurisdiction in Which the Employee Transmits Work Product for an Employer Virtually or the Employer is Incorporated, and Affirmative Compliance with the Law of that Jurisdiction, Massachusetts Law Shall Apply to Remote Employees Performing Work Virtually for the Benefit of Employers Incorporated, Headquartered, or Operating in Massachusetts.
Unless clearly and unmistakably designated by a written, mutually executed contract between the parties (which contract is not a contract of adhesion but is instead individually negotiated between the parties) with a provision unequivocally establishing that the law of a jurisdiction where (1)a Remote Employee transmits work product to the Employer virtually or (2) the Employer is incorporated applies rather than the law of the Commonwealth and (3) the contract expressly provides for compliance with all legal obligations imposed by the jurisdiction relevant to the employment of the Remote Employee, the laws of the Commonwealth shall regulate all terms and conditions of a Remote Employee’s on behalf of an Employer.
A contract designating the choice of law as a jurisdiction other than the Commonwealth shall not be effective, however, upon a showing that the Employer has failed to comply with any legal obligation imposed by the jurisdiction concerning the working terms or conditions of the Remote Employee.
In such a case, the laws of this Commonwealth shall regulate the terms and conditions of a Remote Employee.
SECTION 2: SECTION 1 shall be enacted January 1, 2026.
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