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

66 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP V.A.11. 365 This is an important difference from federal law and the laws of most states, which in certain circumstances allow employers to calculate overtime at the rate in effect at the time that overtime is worked. The Massachusetts Prevailing Wage Statutes require that certain categories of employees of contractors and subcontractors on certain types of projects funded by the state or a municipality be paid a prevailing wage set by the DLS. 366 The statutes are complex, and the requirements vary depending on the type of work being performed. Employees covered by the Massachusetts prevailing wage laws include those working on the construction of public works, 367 those who operate trucks or other equipment in non-construction public works projects , 368 those who move office furniture or fixtures for the state or a municipality , 369 and those who clean and maintain state-owned buildings. 370 1. Construction of Public Works in Massachusetts “Construction” is defined broadly to include any addition to or alteration of a public building or public work, including painting or installation of flooring, as well as certain work done prior to construction, including soil exploration and demolition of existing structures. 371 However, DLS interpretive guidance states that the “addition or alteration” must be part of the public work itself. For example, assembling and placing furniture or other items for use in, but not affixed to, a public building is not “construction” work. 372 The term “public works” is also broadly interpreted, and Massachusetts courts look to the functions ordinarily performed by local public works departments in determining the type of activities that are covered. 373 365 M.G.L. ch. 149, § 26; DLS Opinion Let ter MW-2006-002 (June 12, 2006) (noting that the Commonwealth’s overtime requirement s apply equally to employees paid a prevailingwage); DLS Opinion Let ter MW-2002-010 (Apr. 2, 2002) (not ing that a federal law requiring overt ime pay for any hours worked in excess of eight per day was repealed, and Massachuset t s only requires overt ime pay for hours worked in excess of forty per week); Mullally v. Waste Mgmt. of Massachusetts Inc ., 452 Mass. 526 (2008) (addressing method for calculat ing overt ime rate for employees earning prevailingwages). Overt ime premiums must be calculated in addition to the prevailingwage and cannot be used to offset prevailingwage obligat ions. Id . An employer’s obligat ion to provide overt ime compensat ion is discussed in Sect ion V. As set forth therein, there are significant differences between Massachuset t s and federal law regarding the method of calculat ing the regular rate for employees who are paid at more than one rate during a single week. 366 M.G.L. ch. 149, § 26. 367 Id. 368 M.G.L. ch. 149, § 27F. 369 M.G.L. ch. 149, § 27G. 370 M.G.L. ch. 149, § 27H. While other sect ions of the Massachuset t s prevailingwage laws apply to cont ract s with the Commonwealth of Massachuset t s or any of it s subdivisions, including count ies and municipalit ies, Sect ion 27H applies only to buildings owned or rented by the Commonwealth. The MBTA is not considered to be part of the Commonwealth for purposes of Sect ion 27H. SEIU v. MBTA , No. 88-7299 (Mass. Super. Ct . 1990). 371 M.G.L. ch. 149, § 27D. 372 DLS, Topical Outline of Massachusetts Prevailing Wage Law , at 57 (May 2021), available at ht tps://www.mass.gov/doc/prevailing-wage-topical-index/download ( last visited Sept . 24, 2021). 373 See Commonwealth v. W. Barrington Co ., 5 Mass. App. Ct . 416, 419 (1977) (st reet sweeping covered by M.G.L. ch. 149, § 27F).