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. | 55 2. Coverage Under Federal Minimum Wage Law The FLSA currently sets the federal minimum wage at $7.25 per hour. The rules for determining whether a particular business or employer is subject to the provisions of the FLSA are complex and beyond the scope of this publication. 311 However, because Massachusetts has relied heavily on the DOL’s interpretation of the FLSA in interpreting the Massachusetts Minimum Fair Wage Law, it is necessary to understand the minimum wage under federal law. The FLSA requires that employers pay covered employees the federal minimum wage, unless the employees qualify for an exemption from the minimum wage requirement. An “employee” is broadly defined as “any individual employed by an employer.” 312 For purposes of the FLSA, “employ” means “to suffer or permit to work.” 313 Accordingly, much of the federal analysis regarding whether or not the minimum wage law applies focuses on whether the individual in question is an “employee” as defined by the statute. B. Exemptions from Massachusetts and Federal Minimum Wage Law Both Massachusetts and federal law exempt certain employees from their minimum wage requirements. Because differences between state and federal law must be resolved in favor of whichever law provides more protection to employees, an individual who is exempt from the Massachusetts minimum wage may still need to be paid the federal minimum wage. 314 Employers should ensure that an employee is exempt from both the state minimum wage law and the FLSA before paying less than the federal minimum wage. Both Massachusetts law and the FLSA exclude “volunteers” and “trainees” (also referred to as “interns”) from their minimum wage provisions. Individuals falling into one of these categories are not employees, and they need not be paid for the work they do. Due largely to concerns about exploitation and the impact on work available for employees, however, both Massachusetts and federal law carefully restrict workers who qualify as “volunteers” and “trainees.” Many employers use these terms loosely and often do not realize that a “volunteer” or “trainee” position must meet very specific requirements to qualify as exempt from minimum wage. The tests for “volunteer” and “trainee” are outlined in Section IV.B.1-2. Gonyou v. Tri-Wire Eng’g Solutions, Inc ., 717 F. Supp. 2d 152, 155 (D. Mass. 2011) (Minimum Wage Law coveredConnect icut - based employee because employer was Massachuset t s corporat ion operat ing in Massachuset t s). 311 29 U.S.C. § 203; 29 C.F.R. §§ 510-794. As in the Massachuset t sMinimum Fair Wage Law, the FLSA specifically excludes certain types of work. See 29 U.S.C. §§ 206-207. In addit ion, employees working out side of the United States and it s territories are not covered by the FLSA. 29 C.F.R. § 776.7(a). An employer that has employees working out side the United States should consult legal counsel regarding the employment laws of the count ries in which it s employees work. 312 29 U.S.C. § 203(e)(1). As interpreted by at least one federal court in Massachuset t s, undocumented immigrant s may be employees covered under the Act . Lin v. Chinatown Rest. Corp. , 771 F. Supp. 2d 185, 190 (D. Mass. 2011) (discovery related to plaint iffs’ immigrat ion status not relevant to employees’ FLSAminimum wage claims). 313 29 U.S.C. § 203(g). 314 As noted, the Massachuset t s minimum wage is higher than the federal minimum wage. Therefore, an employee who is exempt from minimum wage under the FLSA but not state lawmust st ill receive the higher Massachuset t s minimum wage.