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

22 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP • If an employee is scheduled to work five hours, reports to work, and there is no work for the employee to perform, the employee is owed three hours of pay at an hourly rate of minimum wage or above. • If an employee is scheduled to work three hours, but the employer calls and speaks with the employee prior to the time the employee reports to work to notify the employee that he or she should not report to work, the employee is owed nothing because he or she did not report to work. The reporting pay requirement does not prohibit the scheduling of shifts that are less than three hours in duration. 88 In addition, an employer is not required to provide reporting pay to an employee called in to perform work while on call because the employee is not “scheduled to work” a shift of three hours or more. 89 For example: • If an employee is scheduled to work two hours, reports to work, and performs two hours of work, the employee is owed two hours of pay at his or her regular hourly rate. A third hour of pay is not required because the shift was scheduled for less than three hours. • If the same employee reports to work and there is no work for the employee to perform, no payment is required. Because the shift was scheduled for less than three hours, the reporting pay requirement does not apply. Organizations that have charitable status under the Internal Revenue Code are exempt from the reporting pay requirement. 90 There is no similar requirement under federal law. 4. Sleep Time Because of the nature of certain jobs, an employer may give an employee a sleeping period during work. Under both Massachusetts and federal law, whether or not sleep time is compensable depends on the length of the employee’s shift and, in some circumstances, the arrangement made between the employer and the employee. Any employee who is required to be on duty at the work site for less than twenty-four hours must be paid for the time even if the employee is allowed to sleep or conduct other personal activities during that time. 91 If the shift exceeds twenty-four hours, the employer and employee may agree that up to eight hours total of sleep and 88 DLS Opinion Let ter MW-2000-006 (Oct . 13, 2000) (“ [The requirement ] does not prevent employers and employees from reaching an agreement that an employees’ [sic] regular daily hours will consist of fewer than three hours, compensated at the minimum wage on an hour-for-hour basis. Rather [the provision applies] . . . to employees whose regularly-scheduled hours of work are curtailed by their employers due to lack of work.”) (emphasis in original). 89 For example, when an on-call technician was called into work for a job that took only one hour to complete, the DLSopined that the employer did not owe three hours of pay because nothing in the report ing pay regulat ion prohibit s employees and employers from agreeing that an employee’s regular hours will last less than three hours. DLS Opinion Let ter MW-2002-015 (May 6, 2002). See also DLS Opinion Let ter MW-2002-017 (June 4, 2002). 90 454 C.M.R. § 27.04(1). 91 29 C.F.R. § 785.21; 454 C.M.R. § 27.04(3)(a).