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

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 119 SJC has held that this exemption applies to all employees of an employer licensed and regulated pursuant to the Massachusetts common carrier statute, irrespective of whether the employees are performing licensed work. 667 4. Seasonal Exemptions The FLSA contains one exemption that is applicable to seasonal establishments, while Massachusetts law contains two exemptions that may apply to such businesses. The requirements of the federal and state exemptions overlap but are not identical. In addition, while the FLSA exempts such establishments from both its minimum wage and overtime requirements, Massachusetts law provides an exemption only from overtime payments. Therefore, unless an employee qualifies for a separate exemption from minimum wage under state law, seasonal employers must pay their employees at least the Massachusetts minimum wage. a. Federal Seasonal Exemption The FLSA exempts employees of certain amusement or recreational establishments that operate on a seasonal basis from both its minimum wage and overtime requirements. 668 To qualify, the establishment must be both recreational and seasonal. 669 An amusement or recreational facility is one that the public frequents for its amusement or recreation. 670 Whether a business meets this criteria depends on the employer’s principal activities and not on the nature of the work performed by the employee. 671 To qualify as a “seasonal” establishment, a business must meet one of two criteria: (1) it must not operate for more than seven months in any calendar year; or (2) during the preceding calendar year, its average receipts for any six months must have been less than one-third of its average receipts for the other months of the year. 672 Under the seven-month test, the business must demonstrate that it “operates” for not more than seven months per year, but it need not shut down completely or terminate every employee during the remaining five months. 673 If an establishment meets all the requirements for the seasonal exemption, it is exempt from the FLSA’s minimum wage and overtime requirements, even if it is owned by a larger business that does not qualify in 667 See Casseus v. Eastern Bus Co., Inc. , 478 Mass. 786, 795-803 (2018). 668 29 U.S.C. § 213(a)(3). 669 See, e.g., Chen v. Major League Baseball Properties, Inc. , 798 F.3d 72, 82 (2d Cir. 2015) (to qualify for Sect ion 213(a)(3) exempt ion, employer must prove that establishment is (1) seasonal and (2) a recreat ional or amusement establishment ). 670 See Hill v. Delaware N. Cos. Sportservice , 838 F.3d 281, 290 (2dCir. 2016) (quot ing 29 C.F.R. § 779.385); see also Jeffrey v. Sarasota White Sox, Inc. , 64 F.3d 590, 595 (11th Cir. 1995). 671 See Gibbs v. Montgomery Cnty. Agric. Soc’y , 140 F. Supp. 2d 835, 843-44 (S.D. Ohio 2001). 672 29 U.S.C. § 213(a)(3). “Average receipt s” have been defined using the accrual account ingmethod, see Adams v. Detroit Tigers , 961 F. Supp. 176 (E.D. Mich. 1997), and as monies actually received by the establishment regardless of the account ing method used to t rack receipt s. See Bridewell v. Cincinnati Reds , 155 F.3d 828 (6th Cir. 1998) ( Bridewell II). 673 Compare Jeffrey , 64 F.3d at 595 (applying exempt ion to groundskeeper who maintained a baseball complex during the seven- month off-season) with Bridewell v. Cincinnati Reds , 68 F.3d 136 (6th Cir. 1995) ( Bridewell I) (declining to apply exempt ion to a business that employed 120 out of 700 employees year-round because the business was deemed to operate year-round as a result ).