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

8 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP security systems to customers via telephone worked in a retail establishment and were entitled to premium pay for Sunday work. 14 a. Sunday Premium Pay Currently, businesses that fall within the parameters of Section 6(50) must provide premium pay to employees who work on Sunday. 15 Prior to 2019, employees were entitled to no less than one and one-half times their regular rate of pay for Sunday work. Beginning in 2019, Massachusetts began phasing out the Sunday premium pay requirement by incrementally reducing the rate each year. 16 Accordingly, businesses will be required to pay premium compensation according to the following schedule: As of January 1, 2019 1.4 times the regular rate As of January 1, 2020 1.3 times the regular rate As of January 1, 2021 1.2 times the regular rate As of January 1, 2022 1.1 times the regular rate As of January 1, 2023 Straight time/no premium Prior to January 1, 2019, neither Massachusetts nor federal law required compounding or “pyramiding” of overtime pay with Sunday premium pay, and an employer was able to reduce or “offset” its obligation to pay Sunday premium pay by the amount of overtime paid to an employee for hours worked in excess of forty during the same workweek. 17 However, with the gradual phasing out of the Sunday premium pay requirement, the higher overtime rate will control, and the federal Fair Labor Standards Act (FLSA) may require the inclusion of the Sunday premium in the calculation of the employee’s regular rate. 18 For example: • An employee who in 2021 works a total of 48 hours in a week, 8 of them on Sunday, is entitled to 8 hours of overtime at the rate of one and one-half times the employee’s regular rate. The employee is entitled to premium pay for the Sunday work, and if the premium rate is 1.2 times, then the premium is likely included in determining the employee’s regular rate for calculating the 8 hours of overtime under the FLSA. 14 See Galloway v. SimpliSafe, Inc. , No. 1784CV03796-BLS1 (Mass. Super. Dec. 18, 2019). 15 M.G.L. ch. 136, § 6(50). The concept and calculat ion of “ regular rate of pay” is discussed in Sect ion V.A. 16 See St . 2018, ch. 121, §§ 5-14. 17 M.G.L. ch. 151, § 1A. See also Swift v. Autozone, Inc. , 441 Mass. 443, 448-50 (2004). If an employer pays holiday pay for a set number of hours to it s employees, those hours are not considered to be hours worked for purposes of calculat ing overt ime. See DLS Opinion Let ter MW-2002-018 (June 5, 2002). 18 See, e.g. , 29 U.S.C. § 207(e)(6) (excluding hours worked at a premium on Saturdays, Sundays or holidays from the employee’s regular rate only if the premium is at least one and one half t imes the rate for non-overtime hours).