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. | 21 premises that he or she cannot use the time freely, then the employee must be compensated. 81 On-call staff members who are allowed to relax when required to remain on company premises must nonetheless receive compensation because they do not have the freedom to pursue their own activities. 82 Employers must also pay on-call employees who are permitted to leave the premises if they must remain so close to the work site that they cannot use the time effectively for their own purposes. 83 On the other hand, if an on-call employee is free to leave the work site and pursue activities of choice, then the employer need not compensate the time. Likewise, when an employee is free to leave but must carry a cell phone or pager, leave word at home, or notify the employer where he or she can be reached, the on-call time is not compensable. 84 3. Reporting Pay Under Massachusetts law, if an employee is scheduled to work a shift of three or more hours and reports for duty, he or she is entitled to at least three hours of pay even if the employee is not assigned any work. 85 For the hours actually worked, the employee must be paid his or her regular rate. 86 Employers that pay wages that exceed the minimum wage may opt to pay only minimum wage for any hours not actually worked. 87 For example: • If an employee is scheduled to work three hours, reports to work, and performs three hours of work, the employee is owed three hours of pay at his or her regular hourly rate. • If an employee is scheduled to work three hours, reports to work, and performs only one hour of work, the employee is owed one hour of pay at his or her regular hourly rate and two hours of pay at an hourly rate of minimum wage or above. 81 29 C.F.R. § 785.17; 454 C.M.R. § 27.04(2). The U.S. Supreme Court dist inguishes between employees who were “engaged to wait” and employees who “waited to be engaged”—the key difference being whether employees have the freedom to pursue the leisure act ivit ies of their choice while wait ing to be called to work. Skidmore v. Swift & Co. , 323 U.S. 134, 137, 65 S. Ct . 161, 89 L.Ed. 124 (1944). 82 29 C.F.R. § 785.17; 454 C.M.R. § 27.04(2). See also Skidmore , 323 U.S. at 139 (finding no evidence that the t ime on-call employees were allowed to spend relaxing on employer’s premises, “even though pleasurably spent , it was spent in the ways the [employees] would have chosen had they been free to do so”). 83 29 C.F.R. § 785.17; 454 C.M.R. § 27.04(2). See also DLS Opinion Let ter MW-2002-019 (June 28, 2002) (noting that t ime between split shift s is compensable when “ the period of inact ivity is too unpredictable, or is of such short durat ion, that the employee is prevented from effect ively using the t ime for his or her own purposes and, therefore, the employee remains ‘on duty’”). 84 See 29 C.F.R. § 785.17; DOL Wage & Hour Opinion Let ter FLSA2009-17 (Jan. 16, 2009) (on-call t ime not compensable where employees carried mobile telephones but were free to t ravel and pursue leisure act ivit ies so long as they stayedwithin an hour’s drive of job site). 85 454 C.M.R. § 27.04(1). 86 DLS Opinion Let ter MW-2007-002 (July 9, 2007). 87 Id.