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

20 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP The Attorney General has stated that an employee may agree to work or stay at the workplace during the meal break, but the employer must pay the employee for all hours worked. 75 While the employee may demonstrate voluntary waiver by working through the meal break or by remaining on the premises at the request of the employer during the meal break, the employer is strongly encouraged to obtain a signed, written waiver before allowing the employee to work through meal breaks. Questions have also arisen regarding whether employers may impose a mandatory thirty-minute meal break and deduct those thirty minutes from employees’ pay, whether or not the employees take the time off. By law, employees must be paid for all hours worked, or “working time.” 76 While employers may enforce mandatory rules requiring that meal breaks be taken at a specific time, they must pay employees when they work through them. 77 If an employee performs unauthorized work during a meal break, and the employer has actual or constructive knowledge that work was performed during that time, the employer must compensate the employee. 78 However, if the employer does not know, and has no reason to know, that an employee was working, the employer has no obligation to compensate the time. 79 Massachusetts’s highest court held in Salvas v. Wal-Mart Stores, Inc. that bargained-for contractual benefits, including unpaid meal breaks, have value and that employees who are deprived of their meal breaks “[l]ike any other party deprived of the benefit of their bargain . . . should be awarded damages that are ‘the equivalent in money for the actual loss sustained by the wrong of another.’” 80 This ruling, plaintiffs’ attorneys often argue, could give employees who have been deprived of contractually mandated meal breaks a claim against employers for breach of contract, even if they do not have a statutory claim for nonpayment of wages. 2. On-Call Time Both Massachusetts and federal law dictate when an employee must be paid for on-call time. Under both, whether or not on-call time is compensable depends upon how the employee may use the time. If the employee must remain on the employer’s premises, or is so restricted off- 75 Meal Breaks, supra note 59. 76 See 454 C.M.R. § 27.02 (defining “working t ime”). This definit ion is similar to the federal definit ion of the “workweek,” which includes “ ‘all the t ime during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.’” 29 C.F.R. § 785.7 (cit ing Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680, 691, 66 S. Ct . 1187, 90 L.Ed. 1515 (1946) (abrogated by statute on other grounds)). 77 DLS Opinion Let ter MW-2005-002 (Apr. 27, 2005); Meal Breaks, supra note 59. 78 DLS Opinion Let ter MW-2005-002 (Apr. 27, 2005) (citing 29 C.F.R. § 785.11; Republican Publ’g Co. v. Am. Newspaper Guild , 172 F.2d 943, 945 (1st Cir. 1949); and Forrester v. Roth’s I.G.A. Foodliner, Inc. , 646 F.2d 413, 414 (9th Cir. 1981) (an employer that knows, or should know, that an employee is working cannot stand idly by and allow an employee to perform work without the appropriate compensation)). 79 Id. (cit ing Prime Commc’ns, Inc. v. Sylvester , 34 Mass. App. Ct . 708, 711 (1993) and Forrester , 646 F.2d at 414 (where an employer has no knowledge that an employee is working, and the employee fails to not ify the employer or deliberately prevent s the employer from discovering the work, the employer’s failure to pay is not a violat ion of the FLSA)). 80 Salvas v. Wal-Mart Stores, Inc. , 452 Mass. 377, 375 (2008).