116 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP 4. Employees Who Work in Retail Establishments The Blue Laws draw a distinction between certain retail establishments and all other establishments and have historically included unique requirements regarding premium pay and voluntariness of work that apply only to the former.681 As discussed below, the premium pay requirement was eliminated effective January 1, 2023, but the voluntariness requirement remains in effect.682 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, 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?683 First, an employer may fall within more than one exemption, one of which is the retail exemption. For example, a business may sell goods within a restaurant. Case law suggests 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, cannot require its employees to work on Sunday, and would have been subject to the former premium pay requirements.684 Similarly, some retail employers (such as gift shops and flower stores) may be exempt from the prohibition against work on Sunday pursuant to multiple exemptions. Any retail operation remains subject to the voluntariness of work requirement, even though other retail exemptions do not impose this requirement.685 Finally, a Massachusetts Superior Court recently held that a business need not have a brick-andmortar store to be a retail establishment. The court held that call center workers who sold home 681 Prior to January 1, 2023, these requirements applied only to a retail business that “employ[ed] more than a total of seven persons, including the proprietor, on Sunday or any day throughout the week . . . .” M.G.L. ch. 136, § 6(50), as amended through St. 2018, c. 121, §§ 5-8. The exemption no longer requires a minimum number of employees. 682 Although the premium pay requirement is no longer in effect, courts continue to assess claims for premium pay violations that occurred prior to January 1, 2023 for which the three-year statute of limitations has not yet expired. See Chapoteau v. Bella Sante, Inc., 103 Mass. App. Ct. 254, 255 (2023). 683 Most case law assessing the scope of the retail exemption have done so in the context of determining whether a business was subject to the former premium pay requirement. The same analysis may be applied in determining whether a business is subject to the voluntariness of work requirement. 684 See Chapoteau, 103 Mass. App. Ct. at 261-262 (spa business that was “primarily” engaged in nonretail activity but also sold beauty products fell within retail exemption subject to former premium pay requirement). The Massachusetts Appeals Court has expressly rejected the argument that an employer could avoid premium pay obligations (formerly imposed on retailers) 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. 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, *1-2 (Mass. Super. Oct. 6, 2017) (finding that businesses which also fall within more specific exemptions that are not subject to former premium pay requirement were exempted from the premium pay requirement). 685 See Drive-O-Rama, 64 Mass. App. Ct. at 770-71 (applying the former time-and-one-half premium pay requirement).
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