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. | 91 has violated the salary basis test should contact legal counsel to discuss its exposure and potential remedial measure. 3. Duties Tests forWhite Collar Exemptions In addition to meeting the compensation requirements and salary basis test, an employee must meet one of the following duties tests to qualify for a white collar exemption from overtime. The tests set forth certain specific duties that the employee must perform to qualify as a bona fide executive, administrative , or professional employee. 499 The Massachusetts Minimum Fair Wage regulations (discussed in Section IV) explicitly adopt the federal definitions of bona fide executive, administrative , and professional employees, including the duties tests for each of the white collar exemptions. 500 The DOL’s 2019 Final Rule, which went into effect in 2020, made no changes to the duties tests. 501 a. Executive Employee Exemption To qualify for the executive employee exemption, an employee must exercise a large degree of authority over other employees. Specifically, the employee must meet the following requirements: 1. The employee must be compensated on a salary basis at a rate not less than $684.00 per week. 2. The employee’s primary dut y 502 must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise. error tolerated by the regulat ion.”); Takacs v. Hahn Auto. Corp. , 246 F.3d 776, 783 (6th Cir. 2001) (“ [T]he ‘windowof correct ion’ regulat ion allows use of the defense only after an employer has first demonst rated an intent ion to pay it s employees on a salary basis.”). 499 Certain highly compensated employees who perform some, but not all, of the dut ies set forth in the execut ive, administ rat ive, or professional dut ies test s will also qualify as exempt from the overtime requirement s. The exemption for highly compensated employees is discussed in Sect ion VI.A.4. 500 See 454 C.M.R. § 27.03; 29 C.F.R. § 541 for the adopted definit ions. See also DLS Opinion Let ter MW-2008-004 (July 14, 2008) (providing that federal salary, salary basis, and dut ies test s are incorporated by reference into Massachuset t s state regulat ions governing overt ime). 501 Defining and Delimiting the Exemption for Executive, Administrative, and Professional Employees , 84 Fed. Reg. 51,230 (Sept . 27, 2019). 502 “Primary duty” is defined as “ the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the fact s in a part icular case, with the major emphasis on the character of the employee’s job as a whole.” 29 C.F.R. § 541.700(a). While the regulat ions state that the amount of t ime an employee spends on a part icular duty is but one factor to be considered in determining the employee’s primary duty, one court of appeals has given this factor deciding weight in addressing the execut ive exempt ion. See Morgan v. Family Dollar Stores, Inc ., 551 F.3d 1233, 1269 (11th Cir. 2008) (store managers non-exempt because “ the overwhelming evidence at t rial showed Plaint iff store managers spent 80 to 90 percent of their t ime performing non-exempt, manual labor”); but see Marzuq v. Cadete Enters. , 807 F.3d 431, 439 (1st Cir. 2015) (fact that 90 percent of t ime spent was on non-exempt act ivity combinedwith other factors raises a quest ion of material fact as to whether store managers were exempt ).