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

60 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP Attorney General’s Public Charities Division. 336 Massachusetts has yet to define “religious” or “educational” institutions for the purposes of this statute. 337 Second, the program in question must qualify as a “training program” such that it falls outside the scope of the Commonwealth’s minimum wage law. Because the term “training program” is not defined in the statute, Massachusetts relies on the six-factor test that the DOL had used prior to January 1, 2018 and has since abandoned. 338 It is unclear whether Massachusetts currently requires all factors to be met, as was the case under the 2010 DOL Fact Sheet. In the past, the DLS has stated that Massachusetts uses a “totality of the circumstances” approach that does not require that all six criteria be met in order for an individual to be deemed a “trainee.” 339 Under that approach, examples of qualifying training programs under Massachusetts law include: • Students in a university’s co-op program because successful completion of their internships was a graduation requirement, making it an integral part of their education 340 • High school students in a vocational training program because the experience was part of each student’s Individual Education Plan, they received academic credit for work performed, and they were carefully supervise d 341 • Students at a for-profit school for troubled youth who participated in a culinary skills program that followed a set curriculum and who were closely supervised by a faculty member 342 • A program requiring troubled high school students to perform janitorial work, the primary purpose of which was to prepare students to “navigate a work environment” and cope with its demands (despite the menial tasks being performed—dishwashing, 336 DLS Opinion Let ter MW-2002-013 (May 9, 2002). 337 The DLS has opined that educat ional “programs” are those that make t raining an integral part of their educat ional curricula and provide supervision and possibly academic credit to student s. DLS Opinion Let ter MW-2003-002 (Feb. 10, 2003). See also DLS Opinion Let ter MW-2001-017 (Nov. 19, 2001). 338 DLS Opinion Let ter MW 2011-02 (May 9, 2011) (adopting the refined six-factor test set out in 2010 DOL Fact Sheet ); DLS Opinion Let ter MW-2003-002 (Feb. 10, 2003). Massachuset t s law also includes a “qualified t rainee” exempt ion for bona fide execut ive, administ rat ive, and professional t rainees, which does not appear in the FLSA. See M.G.L. ch. 151, § 1A(3). The statute does not define the term “qualified t rainee,” and there is no case law interpret ing the exemption. There is therefore no guidance as to which employees qualify for the “qualified t rainee” exempt ion. Similarly, Massachuset t s offers an overt ime exempt ion for “ learner[s]” and “apprentice[s].” See M.G.L. ch. 151, § 1A(5). However, because there are no similar federal exempt ions, employers must find different FLSA exempt ions that would apply to these employees in order to take advantage of the state exempt ions. 339 DLS Opinion Let ter MW-2003-062 (Feb. 10, 2003). 340 DLS Opinion Let ter MW-2001-017 (Nov. 19, 2001). 341 DLS Opinion Let ter MW-2003-002 (Feb. 10, 2003). 342 DLS Opinion Let ter MW-2002-005 (Feb. 20, 2002).