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

14 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP In addition, employers that violate the rules regarding premium pay and voluntariness of work may be fined up to $1,000. 43 Enforcement of these provisions is also entrusted to the Attorney General, and private parties have no standing to sue for alleged violations. 44 Moreover, employees may not directly sue their employer for a violation of the Blue Laws. 45 Whether employees may sue to recover premium pay via the Wage Act is unclear. In connection with retail employees who are paid on a 100% commission basis, the Supreme Judicial Court (“SJC”) held that such employees are entitled to a separate and additional amount to satisfy the premium pay obligation, regardless of the amount of commissions or draws against commissions received. 46 Relying on that decision, at least one court has held that an employee can bring a claim under the Wage Act in order to recover unpaid premium pay. 47 However, there is an argument based on the SJC’s decision in Donis v. American Waste Services, LLC , that employees may not use the Wage Act to circumvent the remedial scheme of the Blue Laws. 48 C. Day of Rest Laws In addition to the Sunday work laws, two statutory provisions mandate a day of rest for employees. 1. One Day of Rest in Seven The primary “One Day of Rest in Seven” provision requires that manufacturers, mechanical establishments, and mercantile establishments (other than those that fall under one of the exceptions specified in Section C.3) give employees at least twenty-four consecutive hours of rest in every seven-day period. 49 The twenty-four hour time period must include an unbroken period comprising the hours of 8 a.m. and 5 p.m. 50 The statute defines these categories as follows: (1) “‘manufacturing establishments’” are “any premises, room or place used for the purpose of making, altering, repairing, ornamenting, finishing or adapting for sale any article or part thereof”; (2) “‘mechanical establishments’” are “any premises, other than a factory . . . where machinery is employed in connection with any work or process carried on therein”; and (3) “‘mercantile establishments’” are “any premises used for the purposes of trade in the purchase or sale of any goods or merchandise, and any premises used for a restaurant or for publicly providing 43 M.G.L. ch. 136, § 13 (applying penalt ies of M.G.L. ch. 149, § 180A). 44 Local 1445, United Food & Commercial Workers Union v. Police Chief of Natick , 29 Mass. App. Ct . 554, 558 (1990). 45 An employee may, however, sue for retaliat ion if an employer terminates the employee’s employment, or otherwise takes act ion against the employee, for refusing to work on a Sunday or legal holiday to which the voluntariness requirement applies. 46 Sullivan v. Sleepy’s LLC , 482 Mass. 227, 239 (2019). 47 See Shoemaker v. Clay Family Dealerships , 1984CV02005BLS1, 2021 WL 800095 (Mass. Super. Jan. 20, 2021). 48 485 Mass. 257 (2020). In Donis , the SJC held that statutory previlaingwages are not wages under the Wage Act and that the plaint iffs could not circumvent the remedial scheme of the prevailingwage law by proceeding under the Wage Act . The logic of that decision arguably means that plaint iffs may not sue under the Wage Act to recover premium pay required by the Blue Laws. But see Shoemaker , 2021 WL 800095 at *3 n.5. 49 M.G.L. ch. 149, § 48. 50 Id .