Table of Contents Front Cover 202

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

Table of Contents i
Introduction 1
I. HOURS OF WORK 2
A. The Workweek 2
B. Sunday and Holiday Work 2
1. Default “Closure Rule” 2
2. Exemptions 3
3. Permits for Necessary Sunday Work or Labor 6
4. Employees Who Work in Retail Stores 7
a. Sunday Premium Pay 8
b. Voluntariness of Work on Sunday 9
5. Legal Holidays 9
6. Penalties for Violation of Sunday and Holiday Work Laws 13
C. Day of Rest Laws 14
1. One Day of Rest in Seven 14
2. Sunday Work Without a Day Off 15
3. Exemptions to the One Day of Rest in Seven and the Sunday Work Without a Day Off Provisions 16
4. Penalties for Violation 17
D. Compensable “Working Time” 17
1. Meal Breaks 17
a. Exemptions 18
b. Liability for Missed Breaks and Failure to Compensate Employees for Work Performed During Breaks 19
2. On-Call Time 20
3. Reporting Pay 21
4. Sleep Time 22
5. Compensable Travel Time 23
a. Commuting Time 23
b. Overnight Travel 24
c. Travel in a Company Vehicle 24
II. MANDATED TIME OFF AND MASSACHUSETTS LEAVE LAWS 25
A. Time Off to Vote 25
B. Court Appearances 25
1. Massachusetts Jury Duty Leave 25
2. Massachusetts Employees Subpoenaed to Testify in a Criminal Action 26
C. Leave for Veterans Participating in Memorial Day or Veterans Day Activities 27
D. Small Necessities Leave Act 27
E. Massachusetts Parental Leave Act 29
F. Proration of Bonus Payments to Employees on FMLA and MPLA Leave 30
G. The Massachusetts Earned Sick Time Law 30
1. Pay for Time Off Pursuant to the ESTL 32
2. Notification of Intent to Use Sick Time and Employee Certification 33
3. Effect of Termination and Breaks in Service and Recordkeeping and Notice Requirements 34
H. Massachusetts Leave for Domestic Violence Victims and Family Members 35
I. Massachusetts Paid Family and Medical Leave 37
III. PAYMENT OF WAGES 38
A. Frequency and Timing of Payment 39
1. How Frequently Must Wages Be Paid? 39
2. When Must Wages Be Paid? 39
B. Wages Under Massachusetts Law 40
1. What Is Included in Wages (and What Is Not)? 40
2. Commissions 41
3. Vacation Pay 41
a. Caps and “Use It or Lose It” Policies 42
b. General “Leave” Category 43
c. Designation of Accrual Rate 43
d. Changes to Vacation Policies 44
4. Severance Payments 44
5. Bonuses 45
a. Discretionary Bonuses 45
b. Earned Bonuses 45
6. Stock 46
7. Expense Reimbursements 46
C. How Must Wages Be Paid? 46
1. Checks and Drafts 46
2. Direct Deposit 47
3. Pay Cards 47
D. When Are Wages “Earned”? 47
E. What Deductions Can an Employer Make from an Employee’s Wages? 48
1. Mandatory Deductions 48
2. Deductions Authorized by Statute 49
a. Deductions for Lodging and Meals 49
(1) Lodging 49
(2) Meals 49
1. The employee’s written consent must be received before an employer can make meal deductions. 49
2. An employer may make a deduction from the basic minimum wage for one meal if the employee works three or more hours. 50
3. An employer may make a deduction from the basic minimum wage for two meals if the employee’s work entirely covers two meal periods, or the employee works for eight hours. 50
4. An employer may make a deduction from the basic minimum wage for three meals if the employer provides the employee with lodging, or if special permission is granted by the Director of the Massachusetts Department of Labor and Workforce Development. 50
(3) Deductions and the Calculation of Overtime 50
b. Uniforms – Deductions Not Allowed 50
c. Other Statutorily Permissible Deductions 51
3. Deductions Not Specifically Listed Above 51
4. Employee Notification of Deductions 53
F. Unclaimed Wages 53
IV. MINIMUM WAGE 53
A. The Minimum Wage Rate in Massachusetts 54
1. Coverage Under the Massachusetts Minimum Fair Wage Law 54
2. Coverage Under Federal Minimum Wage Law 55
B. Exemptions from Massachusetts and Federal Minimum Wage Law 55
1. Volunteers 56
2. Interns/Trainees 58
a. The Federal Exemption for Interns 58
b. Massachusetts Exemption for Interns 59
C. The Payment of Special Sub-Minimum Wages 61
1. Tipped Employees 61
2. Student Workers 61
3. Workers with Disabilities 62
D. The Prevailing Wage for Work on Public Contracts 65
1. Construction of Public Works in Massachusetts 66
2. Operation of Equipment in Public Works in Massachusetts 68
3. Other Prevailing Wage Provisions in Massachusetts 68
4. Davis-Bacon and Related Acts 69
V. OVERTIME 69
A. Calculation of the Regular Rate of Pay 70
1. Compensation Included in the Calculation of the Regular Rateof Pay Under Federal Law 70
2. Compensation Excluded from the Calculation of the RegularRate of Pay Under Federal Law 71
3. Additional Compensation Excluded from the Calculation of the Regular Rate of Pay Under Massachusetts Law 72
4. Determining Whether to Apply the Massachusetts or Federal Calculation of the Regular Rate 72
5. Calculation of the Regular Rate for an Hourly Employee 73
6. Calculation of the Regular Rate for an Employee Paid on a Commission Basis Only 73
7. Calculation of the Regular Rate When a Bonus Is Included in the Rate 74
8. Calculation of the Regular Rate for an Employee Paid by a Method Other Than an Hourly Rate 75
a. Piecework 75
b. Day Rates and Job Rates 76
c. Semi-Monthly or Monthly Salary 76
9. Calculation of the Regular Rate Using the Fluctuating Workweek Method (FWW) 77
10. Calculation of the Regular Rate Using the Fixed Salary Method 79
11. Calculation of the Regular Rate for an Employee Working at Two or More Rates 81
B. Sunday and Holiday Overtime Pay Requirements 81
VI. EXEMPTIONS FROM OVERTIME 82
A. White Collar Exemptions 83
1. Minimum Compensation Requirements 84
2. Salary Basis Test 84
a. Deductions from Salary 85
(1) Deductions for Disciplinary Reasons 85
(2) Deductions for Personal Absences 86
(3) Deductions for Sickness or Disability 86
(4) Deductions Taken Pursuant to the Family and Medical Leave Act and Massachusetts Leave Laws 87
(5) Deductions from Vacation or Leave Banks 87
(6) Responses to Downturns in Business: Reductions in Pay and Furloughs 88
b. Violations of the Salary Basis Test 89
c. Safe Harbor for Employers That Make Impermissible Deductions 90
3. Duties Tests for White Collar Exemptions 91
a. Executive Employee Exemption 91
(1) Management Duties 92
(2) A Customarily Recognized Department or Subdivision 93
(3) Directing the Work of at Least Two or MoreFull-Time Employees 94
(4) Authority Necessary to Qualify as an Executive 94
(5) Application of Executive Exemption to an Employee Who Performs Both Exempt and Non-Exempt Duties 95
(a) Federal Regulations 95
(b) Case Law 96
b. Administrative Employee Exemption 97
(1) Primary Duty Is Office or Non-Manual Work Directly Related to the Management or General Business Operations of the Employer 98
(2) Exercise of Discretion and Independent Judgment 100
(3) Matters of Significance 102
(4) Examples of Positions That Qualify for the Administrative Exemption 102
(5) Examples of Positions That Do Not Qualifyfor the Administrative Exemption 103
c. Professional Exemption 104
(1) Learned Professional Exemption 104
(a) Work Requiring Advanced Knowledge 104
(b) Fields of Science or Learning 105
(c) Customarily Acquired by a Prolonged Course of Specialized Intellectual Instruction 105
(d) Examples of Employees Who Qualify for the Learned Professional Exemption 106
(e) Examples of Employees Who Do Not Qualify for the Learned Professional Exemption 107
(2) Creative Professional Exemption 108
(a) Work Requiring Invention, Imagination, Originality, or Talent 108
(b) Recognized Field of Artistic or Creative Endeavor 109
d. Computer Professional Exemption 109
4. Highly Compensated Employee Exemption 111
B. Other Exemptions 112
1. Outside Sales Exemption 112
a. Federal Outside Sales Exemption 112
b. Massachusetts Outside Sales Exemption 114
2. Federal Commissioned Inside Sales Exemption 115
3. Motor Carrier Exemptions 116
a. Federal Motor Carrier Act Exemption 116
b. Massachusetts Motor Carrier Exemption 118
c. Massachusetts Common Carrier Exemption 118
4. Seasonal Exemptions 119
a. Federal Seasonal Exemption 119
b. Massachusetts Seasonal Exemptions 120
5. Blanket Exemptions for Certain Businesses 120
6. Other Massachusetts Exemptions 121
VII. MASSACHUSETTS EQUAL PAY ACT 122
A. “Comparable Work” 123
B. Permitted Justifications for Wage Differentials 124
C. Prohibition on Salary History Requests 125
D. Prohibition on Pay Secrecy Requirements 125
E. Self-Evaluation Defense 125
F. Damages 127
VIII. TIPS AND SERVICE CHARGES 127
A. Definition of a Tip or Service Charge 128
B. The Sharing of Tips and Service Charges 130
C. “No Tipping” Policies 133
D. Mandatory Pooling of Tips and Service Charges 134
E. The Tip Credit and Service Rate 135
F. Liability for Violations 136
G. Penalties for Violations 137
IX. POSTING REQUIREMENTS 137
A. General Wage and Hour Notices 138
B. Posting Days of Rest and Sunday Work 138
C. Posting Work Hours for Minor Employees 139
D. Posting the Special Minimum Wage Paid to Employeeswith Disabilities 139
X. WAGE ASSIGNMENTS 140
XI. GARNISHMENTS 141
A. Calculating Garnishments Under Massachusetts Law andthe CCPA 142
B. Garnishments for Support Orders 143
C. Additional Protections for Members of the Military 144
D. Terminating Employees Subject to Garnishments 144
XII. CLASSIFYING WORKERS AS INDEPENDENT CONTRACTORS 145
A. The Massachusetts ABC Test for Independent Contractors 147
1. Level of Control Exercised by Employer 147
2. Services Provided Are Outside the Usual Course of Business 149
3. Independent Trade, Occupation, Profession, or Business 153
B. Real Estate Brokers Are Exempt from the ABC Test 154
C. Liability for Misclassification as an Independent Contractor 154
XIII. OTHER MISCELLANEOUS MASSACHUSETTS LAWS 156
A. Massachusetts Personnel Records Law 156
B. Temporary Workers Right to Know Law 158
1. Notice Requirements 159
2. Limitations on Fees Charged to Temporary Workers 160
3. Additional Restrictions 161
4. Enforcement and Penalties 161
XIV. JOINT EMPLOYMENT 162
XV. RETALIATION FOR COMPLAINTS REGARDING WAGE AND HOUR VIOLATIONS 164
XVI. STATUTES OF LIMITATIONS 166
XVII. ATTORNEY GENERAL’S OFFICE COMPLAINTS AND INVESTIGATIONS 167
A. Procedure for Filing a Complaint with the Office of the Massachusetts Attorney General 168
B. The Attorney General’s Investigatory Procedure 169
C. Resolution of Complaints and Other Violations 170
XVIII. PENALTIES AND ENFORCEMENT 171
A. Individual Liability 171
B. Criminal Penalties 172
C. Civil Penalties Imposed by the Attorney General 172
D. The Attorney General’s Means of Enforcement 174
E. Massachusetts Wage and Hour Class Actions 174
F. Arbitration 175
G. Damages in Civil Lawsuits 178

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