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

56 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP Massachusetts also excludes certain groups of employees from the minimum wage requirement, including those performing agricultural and farm work, persons in religious orders, and those performing outside sales work. 315 The FLSA excludes a broader group of employees, including but not limited to amusement park workers, fishermen, agriculture employees, employees of newspapers with limited circulation, switchboard operators, seamen, babysitters and those providing companionship services to the infirm, and criminal investigators. 316 1. Volunteers There is very little statutory or judicial guidance under either Massachusetts or federal law regarding when an individual may be considered a volunteer. Given this lack of guidance, the federal DOL (the entity tasked with enforcing the FLSA) has issued a series of opinion letters defining who is a volunteer under the FLSA. Because Massachusetts applies the same federal test for determining “volunteer” status, anyone deemed a volunteer under federal law is also exempt from the minimum wage requirements imposed by Massachusetts law. 317 The DOL limits volunteer status to “those individuals performing charitable activities for not-for- profit organizations” and thus specifically precludes individuals from volunteering for a for-profit entity. 318 In general, individuals who volunteer their services for public, religious, or humanitarian purposes without any expectation of payment are not considered employees of the non-profit organizations they serve and therefore are not entitled to pay under the minimum wage laws. The DOL examines six factors to test whether an individual qualifies as a bona fide “volunteer”: 1. The nature of the entity receiving the services 2. The receipt by the worker of any benefits, or expectation of any benefits, from his or her work 315 M.G.L. ch. 151, § 2. “Agriculture or farm work” is defined as “ labor on a farm and the growing and harvest ing of agricultural, floricultural and hort icultural commodit ies.” Id . As discussed in detail in Sect ion VI.B.1, “out side sales work” is defined as work “ regularly performed by out side salesmen who regularly sell a product or product s away from their employer’s place of business and who do not make daily report s or visit s to the office or plant of their employer.” Id . 316 29 U.S.C. § 213(a). Each of these categories contains addit ional requirement s that an employee must meet before he or she becomes exempt from the FLSA’s minimum wage requirement . 317 DLS Opinion Let ter MW-2003-009 (Aug. 11, 2003) (stat ing that for purposes of determining volunteer status, Massachuset t s has adopted the guidelines employed by the DOL). The DLS (the state ent ity that administers the minimum wage law) has issued two opinions on volunteers. First , volunteers working a maximum of seventy-two hours per month in a food pant ry were not employees because they did not displace other employees and only worked part -t ime. Id . Second, a woman who volunteered full- t ime as a vocat ional case manager was an employee and not a volunteer where she worked alongside employees performing essent ially the same work, she could not take t ime off without prior approval, and she was t reated like an employee in all areas except wages and benefit s. DLS Opinion Let ter MW-2002-021 (Aug. 9, 2002). 318 DOL Wage & Hour Opinion Let ter FLSA1999 (Sept . 30, 1999). See also Brown v. New York City Dep’t of Educ. , 755 F.3d 154, 163 (2dCir. 2014) (holding that , under public agency except ion, individuals need not be mot ivated solely by civic, charitable, or humanitarian purposes to be volunteers, but instead may have mixed mot ivat ions for performing volunteerwork, such as building one’s resume).