United States: Employers' Guide To Massachusetts Wage & Hour Law

INTRODUCTION

Employers that operate in Massachusetts continue to face substantial risks under the Commonwealth's wage and hour laws. With a patchwork of arcane and complex statutes that impose many non-intuitive requirements, Massachusetts laws far exceed the scope of federal law. Compounding the risks of non-compliance with these laws is the Commonwealth's statute mandating liquidated treble damages for wage and hour violations.

This publication is a brief overview of Massachusetts wage and hour laws. It is our goal to identify key provisions that may expose Massachusetts businesses to risks, but with the caveat that as an overview, it is not intended to provide an in-depth analysis of the many exceptions and nuances that exist under Massachusetts law. For a more in-depth analysis of Massachusetts wage and hour law, the Fourth Edition of our comprehensive handbook, Massachusetts Peculiarities: An Employer's Guide to Wage and Hour Laws in the Bay State, will be released later this year. To reserve your copy of the Fourth Edition, please click here.

I. HOURS OF WORK

Both Massachusetts and federal wage and hour law use the "workweek" as a basic unit of measurement. The workweek consists of seven consecutive twenty-four hour periods and can begin on any day of the week and at any hour of the day.

A. Sunday and Holiday Work

The Massachusetts laws governing work on Sunday and holidays, commonly referred to as the "Blue Laws," are complex and the source of much confusion.

1. Sunday Work

The default rule under the Blue Laws is that a business may not operate on Sunday.1 However, there are fifty-five exemptions to this default rule that allow certain businesses to operate legally on Sunday.2 If a business does not qualify for an exemption, it may not legally operate in Massachusetts on Sundays unless it obtains a permit from the chief of police of the town or city in which the business is located.

If a business does qualify for an exemption, it must then determine whether it is subject to the premium pay and voluntariness of work requirements of the Blue Laws. Specifically, a retail business that "employs more than a total of seven persons, including the proprietor, on Sunday or any day throughout the week . . . " is required to provide premium pay for Sunday work.3 Currently, premium pay is no less than 1.4 times an employee's regular rate of pay.4 In addition, no employee of a retail employer can be required to work on Sunday.5

2. Legal Holidays

The Sunday closure requirements extend to Memorial Day, Independence Day, Labor Day, Columbus Day before noon, and Veterans Day before 1 p.m.6 Currently, the provisions regarding premium pay and voluntariness of work that apply to retail employers operating on Sunday also apply to retail employers operating on these holidays.7

Other holidays have additional requirements unique to retail employers. For example, while New Year's Day is not subject to the closure requirements, retail employers that operate that day must abide by the premium pay and voluntariness requirements.8 Retail businesses may not open at all on Thanksgiving Day or Christmas Day without a permit from the Department of Labor Standards ("DLS").9

Manufacturing employers are subject to a unique statutory provision. If a factory or mill falls within one of the exemptions to the Blue Laws, it may operate on legal holidays. However, employees may not be required to work on legal holidays unless the work is "absolutely necessary and can lawfully be performed on Sunday . . . ." 10 To qualify as work that "can lawfully be performed on Sunday," the work must "for technical reasons require continuous operation . . . ."11

3. Penalties for Violation of Sunday and Holiday Work Laws

The Office of the Massachusetts Attorney General is charged with enforcing the Blue Laws. An employer operating in violation of the Sunday or holiday work laws may be subject to a fine of not less than $20.00 and no more than $100.00 for a first offense, and a fine of not less than $50.00 and no more than $200.00 for each subsequent offense.12 In addition, employers that violate the rules regarding premium pay and voluntariness of work may be fined up to $1,000.13

B. Day of Rest Laws

The "One Day of Rest in Seven" statute requires that manufacturers, mechanical establishments, and mercantile establishments (other than those that fall under a specified exception) give employees at least twenty-four consecutive hours of rest in every seven-day period.14 The twenty-four hour time period must include an unbroken period comprising the hours of 8 a.m. and 5 p.m.

A separate statutory provision entitled, "Sunday Work Without a Day Off," requires that an employer give an employee a twenty-four hour period off within the six days following a Sunday on which the employee works. This statute applies to two categories of employees: (1) those engaged in any commercial occupation or in the work of any industrial process who do not work in a "manufacturing, mechanical, or mercantile establishment"; and (2) those engaged in transportation or communication work.15

Employers that violate the One Day of Rest in Seven or the Sunday Work Without a Day Off statutes are subject to a fine of not more than $300.00 per violation.16

C. Compensable "Working Time"

Both Massachusetts and federal law require that employees be paid for all "working time."17 Working time encompasses not only those hours spent by employees actively engaged in work, but also the time during which employees are required to be on the employer's premises or in the service of the employer off-premises.18

1. Meal Breaks

Massachusetts law mandates that all employees (including exempt employees) receive an unpaid, thirty-minute meal break after six hours of work.19 The meal break must be the employee's free time, meaning the employee must be relieved of all duties and free to leave the workplace during that time.20 Otherwise, the time is compensable.

The Attorney General has enforcement authority for the meal break statute. Any employer that violates the provisions of the statute may be subject to fines ranging between $300.00 and $600.00 for each violation.21

2. On-Call Time

Both Massachusetts and federal law dictate when an employee must be paid for on-call time. If the employee must remain on the employer's premises, or is so restricted off-premises that he or she cannot use the time freely, then the employee must be compensated.22 Employers must also pay on-call employees who are permitted to leave the premises if they must remain so close to the work site that they cannot use the time effectively for their own purposes.23

3. Reporting Pay

Under Massachusetts law, if an employee is scheduled to work a shift of three or more hours and reports for duty, he or she is entitled to at least three hours of pay even if the employee is not assigned any work.24 For the hours actually worked, the employee must be paid his or her regular rate. Employers that pay wages that exceed the minimum wage may opt to pay only the minimum wage for any hours not actually worked.25

4. Sleep Time

Any employee who is required to be on duty at the work site for less than twenty-four hours must be paid for the time even if the employee is allowed to sleep or conduct other personal activities during that time.26 If the shift exceeds twenty-four hours, the employer and employee may agree that up to eight hours total of sleep and meal time will be unpaid so long as the employer provides adequate sleeping arrangements and the employee can enjoy an uninterrupted night's sleep.27

5. Compensable Travel Time

Massachusetts regulations generally conform to the federal regulations in defining the types of travel time that constitute compensable work time.28 An employee's regular commute to and from work is generally not considered work time, and thus it is not compensable under either Massachusetts or federal law.29 Much of employee travel time other than an employee's regular commute to and from work is compensable.30

All travel time that occurs during an employee's regular workday is worktime because "[t]he employee is simply substituting travel for other duties."31 This rule is applicable not only to the employee's regular working days, but also to the corresponding hours on non-working days.32 The U.S. Department of Labor (DOL) has stated that, with respect to enforcing the travel time regulations, it "will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile."33 Massachusetts regulations explicitly adopt the DOL's position.34

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Footnotes

1 M.G.L. ch. 136, § 5.

2 M.G.L. ch. 136.

3 M.G.L. ch. 136, § 6(50).

4 Id.

5 Id.. However, the premium pay requirement for retail workers working on Sundays will be phased out by 2023. The current premium rate will reduced annually by one-tenth each year and ultimately eliminated. See 2018 Mass. Acts ch. 121.

6 M.G.L. ch. 136, §§ 13-16.

7 M.G.L. ch. 136, §§ 6(50), 13, 16. However, the premium pay requirement for retail workers working on holidays will be phased out by 2023. The rate will reduced annually by one-tenth each year and ultimately eliminated. See 2018 Mass. Acts ch. 121.

8 M.G.L. ch. 136, § 13.

9 M.G.L. ch. 136, § 15.

10 M.G.L. ch. 149, § 45.

11 M.G.L. ch. 136, § 6(6).

12 M.G.L. ch. 136, § 5.

13 M.G.L. ch. 136, § 13 (applying penalties of M.G.L. ch. 149, § 180A).

14 M.G.L. ch. 149, § 48.

15 M.G.L. ch. 149, §§ 47-48.

16 M.G.L. ch. 149, §§ 47-48.

17 Massachusetts law defines "working time" as "all time during which an employee is required to be on the employer's premises or to be on duty, or to be at the prescribed work site . . . ." 455 C.M.R. § 2.01.

18 29 C.F.R. § 785.7; 454 C.M.R. § 27.02.

19 M.G.L. ch. 149, § 100.

20 DLS Opinion Letter MW-2003-008 (Aug. 5, 2003).

21 M.G.L. ch. 149, § 100.

22 29 C.F.R. § 785.17; 454 C.M.R. § 27.04(2).

23 29 C.F.R. § 785.17; 454 C.M.R. § 27.04(2). See also DLS Opinion Letter MW-2002-019 (June 28, 2002).

24 454 C.M.R. § 27.04(1).

25 DLS Opinion Letter MW-2007-002 (July 9, 2007).

26 29 C.F.R. § 785.21; 454 C.M.R. § 27.04(3)(a).

27 29 C.F.R. § 785.22; 454 C.M.R. § 27.04(3)(b).

28 29 C.F.R. §§ 785.35-785.41; 454 C.M.R. § 27.04(4).

29 29 C.F.R. §§ 785.35-785.41; 454 C.M.R. § 27.04(4)(a). See also DLS Opinion Letter MW-2002-019 (June 28, 2002).

30 454 C.M.R. § 27.04(4).

31 29 C.F.R. § 785.39; 454 C.M.R. § 27.04(4)(e) (applying requirements of 29 C.F.R. § 785.39 to overnight travel).

32 29 C.F.R. § 785.39. See also DLS Opinion Letter MW-2002-012 (Apr. 17, 2002).

33 29 C.F.R. § 785.39.

34 454 C.M.R. § 27.04(4)(e) (adopting provisions of 29 C.F.R. § 785.39).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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