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. | 7 permit within fifteen days of application. 8 The mayor or selectman of the target town or city sets the fee for the permit, which by statute must be $10.00 or less. 9 4. Employees Who Work in Retail Stores The Blue Laws draw a distinction between certain retail establishments and all other establishments and include unique requirements regarding premium pay and voluntariness of work that apply only to the former. 10 Specifically, these requirements apply to a retail business that “employs more than a total of seven persons, including the proprietor, on Sunday or any day throughout the week . . . .” 11 An employer must therefore determine whether it is a “retail” establishment that falls within these parameters. While this might seem to be a straightforward analysis, in today’s world, a business does not always fall clearly into one specific exemption to the closure law. Thus, two questions often arise: (1) What if a business falls within both a retail and a non-retail exemption? and (2) What if a business falls within two different retail exemptions? First, an employer may fall within more than one exemption, one of which is the retail exemption requiring premium pay. For example, a business may sell goods at retail within a restaurant. Must such an employer pay premium pay and follow the voluntariness of work requirement? Unfortunately, the answer is not entirely clear. The scope and interrelationship of the various exemptions within the Blue Laws are ambiguous, and there is little administrative or judicial guidance on these issues. However, the authorities available suggest that an employer that engages in the sale of goods at retail, even though conducting other business subject to another exemption from the Blue Laws, is subject to statutory premium pay obligations and must pay employees working on Sundays or designated holidays at the applicable premium rate times their regular rate. The Massachusetts Appeals Court has expressly rejected the argument that an employer may avoid premium pay obligations if it is legally authorized to conduct business under some other exemption to the Sunday and holiday closure laws and also sells goods at retail. 12 Similarly, some retail employers (such as gift shops and flower stores) may be exempt from the prohibition against work on Sunday pursuant to multiple retail exemptions, including Section 6(50). Although other retail provisions do not require premium pay, any retail operation that is covered by Section 6(50) must pay premium rates for work on Sunday. 13 Finally, a Massachusetts Superior Court recently held that a business need not have a brick-and- mortar store to be a retail establishment. The court held that call center workers who sold home 8 Id. 9 Id. 10 M.G.L. ch. 136, § 6(50). 11 Id. 12 See Drive-O-Rama, Inc. v. Attorney Gen. , 63 Mass. App. Ct . 769, 770-71 (2005); But see Smith-Berry v. National Amusements, Inc. , 2017 WL 5559390 at *1-2 (Mass. Super. Oct . 6, 2017) (finding that businesses which also fall within more specific exempt ions that are not subject to premium pay are exempted from the premium pay requirement ). 13 See Drive-O-Rama , 64 Mass. App. Ct . at 770-71 (applying the former t ime-and-one-half premium pay requirement ).