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

120 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP its entirety. 674 However, a separate business that operates within a recreational or seasonal establishment (e.g., a concessionaire leasing space at an amusement park) will not qualify for this exemption unless it independently meets all the criteria for the seasonal exemption. 675 Once a business qualifies for the exemption, employees performing routine work that is incident to its operation are exempt for the entire year. 676 b. Massachusetts Seasonal Exemptions Massachusetts law provides two overtime exemptions that may cover seasonal employees. Both of these provide an exemption only from overtime, not minimum wage. The Massachusetts “amusement park exemption” applies to employees of amusement parks that contain “a permanent aggregation of amusement devices, games, shows, and other attractions” and that operate for less than 150 days in any one year. 677 Additionally, the Massachusetts “seasonal exemption” applies to employees of businesses that are seasonal in nature and are open for business for less than 120 days in any one year. 678 A business is “seasonal in nature” if it is only open during a discrete season and offers no programs, closes the facilities, and retains only maintenance employees in its off season. 679 As with the federal exemption, once a business qualifies for one of the Massachusetts seasonal exemptions, an employee performing routine work that is incident to its operation is exempt for the entire year. 680 5. Blanket Exemptions for Certain Businesses Massachusetts overtime law provides blanket exemptions for employees of certain types of businesses. 681 Because the FLSA does not contain any similar blanket exemptions, 674 DOL Wage & Hour Opinion Let ter FLSA2009-5 (Jan. 14, 2009) (lifeguards employed at town beach that was open only seven months each year were exempt because the beach qualified as seasonal establishment even though ent ire municipality did not ). 675 DOL Wage & Hour Opinion Let ter FLSA2009-11 (Jan. 15, 2009). The DOL found that a concessionaire at a privately owned recreat ional establishment did not qualify for the exempt ion because restaurant s are not meant for amusement or recreat ion, and the restaurant and the qualifying establishment were separate legal ent it ies. Id. Businesses are not “single ent it ies” if (1) there is physical separat ion from other act ivities; (2) they funct ionally operate as separate unit s with separate records and bookkeeping; and (3) there is no interchange of employees between unit s. Id . See also Hill , 838 F.3d at 296 (applying exempt ion where company is a “concessionaire,” “which Congress intended to exempt if it also meet s one of the seasonality test s.”). 676 DOL Wage & Hour Opinion Let ter FLSA2000 (May 23, 2000). 677 M.G.L. ch. 151, § 1A(20). 678 M.G.L. ch. 151, § 1A(9); DLS Opinion Let ter MW-2005-001 (Feb. 3, 2005) (defining statute’s term “carried on” as meaning “open for business”). A business that operates mult iple seasonal operat ions with dist inct workforces may apply different seasonal exempt ions to those workforces. DLSOpinion Let ter MW-2007-003 (Sept . 24, 2007). 679 DLS Opinion Let ter MW-2005-001 (Feb. 3, 2005). Seasonal businesses, except for summer camps operated by non-profit charitable organizat ions, must apply to the Department of Labor Standards annually for an overt ime waiver. DLS Opinion Let ter MW-2015-01 (Jan. 7, 2015); DLSOpinion Let ter MW-2018-1-23-18 (Jan. 23, 2018). 680 Id . 681 M.G.L. ch. 151, § 1A. The blanket exempt ion for hospitals has been interpreted by both federal and state court s in Massachuset t s. See Tortolano v. Lemuel Shattuck Hosp. , 93 Mass. App. Ct . 773, 775 n.3 (2018) (noting that M.G.L. ch. 151, § 1A does not apply to hospital employees); Manning v. Boston Med. Ctr. Corp. , No. 09-11724-RWZ, 2011 WL 864798, at *3 (D. Mass. Mar. 10, 2011) (dismissing overt ime claims by hospital employees based on hospital exempt ion). Hospitals are also exempted from coverage under M.G.L. ch. 149, § 148, if they are “supported in part by cont ribut ions from the commonwealth or from any city or town, . . . provide[] t reatment to pat ients free of charge, or . . . [are] conducted as a public charity.”