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

62 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP Revenue Code and maintains a ratio of one minor to five adults working in those areas 349 Prior to July 2017, a seasonal camp could apply for a complete minimum wage exemption (rather than a waiver to pay 80 percent of the minimum wage) for counselors and counselor trainees. 350 However, the minimum wage law was amended to end the need for a camp to apply for a waiver and to exclude “seasonal camp counselors and counselor trainees” from the minimum wage law. 351 Federal law also allows the payment of special sub-minimum wages to certain student workers. 352 Student workers who fall into the narrow categories listed above also are likely to satisfy the federal requirements. 353 3. Workers with Disabilities Both Massachusetts and federal law allow employers to pay a special sub-minimum wage to certain workers with disabilities. 354 In order to pay the special sub-minimum wage, an employer must first obtain certificates from the Massachusetts Director of the Department of Labor Standards 355 and the Administrator of the DOL’s Wage and Hour Division. 356 The Director will not issue a certificate unless the employer has already obtained a certificate from the DOL. 357 Massachusetts law defines a disabled worker as an “employee whose earning capacity is impaired by age or physical or mental deficiency or injury, or . . . an employee who is certified by the secretary of health and human services . . . as a handicapped person . . . .” 358 Unfortunately, there is limited Massachusetts authority interpreting this provision. As a result, employers may look to the relevant federal law for guidance since the Massachusetts and federal provisions are, in large 349 454 C.M.R. § 27.06 (1). 350 M.G.L. ch. 151, § 7. See also DLS Opinion Let ter MW-2015-01 (Jan. 7, 2015), rescinded by DLS Opinion Let ter MW-2018- 1-23-18 (Jan. 23, 2018). 351 M.G.L. ch. 151, § 7; DLS Opinion Let ter MW-2018-1-23-18 (Jan. 23, 2018). 352 29 U.S.C. § 206(a)(1), as amended by Pub. L. No. 114-187 § 403. 353 29 C.F.R. §§ 519.2 and 520.201. Under the FLSA, addit ional categories of student workers may qualify for sub-minimum wages, including full-t ime student s working in retail, agriculture, or educat ional inst itut ions; student -learners part icipating in bona fide vocat ional t raining programs; apprent ices learning skilled t rades through registered programs; and learners who are being t rained for skilled occupat ions but who, when init ially employed, produce lit t le or nothing of value. Id. (Employers interested in obtaining a cert ificate allowing them to pay a sub-minimum wage should contact the U.S. Department of Labor, Wage andHour Division regional office with jurisdict ion over their state. The Northeast Region office can be reached at (215) 861-5800.) 354 29 C.F.R. § 525.9; M.G.L. ch. 151, § 9. 355 M.G.L. ch. 151, § 9; 454 C.M.R. §§ 27.02 and 27.06. 356 29 C.F.R. § 525.7. 357 454 C.M.R. § 27.06. See also DLS, Application for Waiver of Minimum Wage for Employees with Disabilities , available at ht tps://www.mass.gov/doc/employees-with-disabilit ies-minimum-wage-waiver/download ( last visited Sept . 24, 2021). 358 M.G.L. ch. 151, § 9.