Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

114 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP business with sufficient regularity to qualify for the exemption. 627 Unlike the white collar exemptions, there is no salary basis requirement for outside salespersons under the FLSA. b. Massachusetts Outside Sales Exemption There are two distinct outside sales exemptions under the Massachusetts Minimum Fair Wage Law. The first, which exempts outside sales employees from both the Commonwealth’s minimum wage and overtime requirements, excludes outside sales from the definition of what constitutes an “occupation.” 628 To qualify for this exemption, an individual must both (1) regularly sell products away from the employer’s place of business; and (2) refrain from making daily reports or visits to the employer’s offices. 629 While the statute does not define “daily reports” and there is no case law on this topic, a DLS opinion letter addressing this issue states that the daily reports must be in-person (and not merely electronic) in order to undermine an employee’s exempt status. 630 Thus, an employee may still be exempt in Massachusetts if he or she calls or e-mails the employer every day. Attending weekly or monthly meetings at the employer’s offices is also permitted because such meetings are merely “incidental to and in conjunction with” the employee’s outside sales. 631 The second Massachusetts outside sales exemption applies only to the Commonwealth’s overtime pay requirements, and therefore an employee who meets the requirements of this exemption but not the Massachusetts exemption explained above must be paid at least Massachusetts minimum wage. This exemption specifically states that the Massachusetts overtime provisions are not “applicable to any employee who is employed . . . as an outside salesman or outside buyer.” 632 This second exemption for outside salespersons is typically easier to meet because there is no restriction on how often sales employees may visit their employers’ places of business. 633 Because the Massachusetts exemption appears to be analogous to the federal exemption, employees who satisfy the federal outside sales exemption requirements likely satisfy this Massachusetts exemption as well. 627 See , e.g. , Sullivan v. Dumont Aircraft Charter, LLC , No. 16-10713-DPW, 2019 WL 1082500, at *16 (D. Mass. Mar. 7, 2019). 628 M.G.L. ch. 151, § 2. The Massachuset t s minimum wage and overt ime laws apply to any person employed “ in an occupat ion.” M.G.L. ch. 151, § 1 (“ It is hereby declared to be against public policy for any employer to employ any person in an occupation in this commonwealth at an oppressive and unreasonable wage . . . .”) (emphasis added). 629 M.G.L. ch. 151, § 2 . The FLSA does not have a similar requirement , so out side sales employees may make daily visit s to their employers’ places of business without losing their federal exempt ion. 630 DLS Opinion Let ter MW-2002-025 (Dec. 16, 2002). 631 Id . 632 M.G.L. ch. 151, § 1A(4). 633 See, e.g., Jinks v. Credico (USA) LLC, No. 1784CV02731-BLS2, 2020 Mass. Super. LEXIS 36, at *¬22-23 (Mass. Super. Feb 28, 2020) (declining to incorporate the daily report requirement from M.G.L. ch. 151, § 2 into § 1A(4) because the language is not included in the statute and to do so would render the two provisions duplicat ive); Youssefi v. Direct Energy Bus. , LLC , No. SUCV2018-03809-BLS1, 2020 Mass. Super. LEXIS 44, at *3-4 (Mass. Super. Feb. 28, 2020) (holding that , based on the FLSA definit ion of “out side salesman,” the plaint iff was exempt from M.G.L. ch. 151, § 1A(4)).