© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 21 statute, and violations are punishable like a violation of the statute.124 The extent to which these substantive requirements are within the authority of the DLS is an open question. C. Exemptions from Massachusetts and Federal Minimum Wage Law Both Massachusetts and federal law exempt certain employees from their minimum wage requirements. Because differences between state and federal law must be resolved in favor of whichever law provides more protection to employees, an individual who is exempt from the Massachusetts minimum wage may still need to be paid the federal minimum wage.125 Employers should ensure that an employee is exempt from both the state minimum wage law and the FLSA before paying less than the federal minimum wage. Both Massachusetts law and the FLSA exclude “volunteers” and “trainees” (also referred to as “interns”) from their minimum wage provisions. Individuals falling into one of these categories are not employees, and they need not be paid for the work they do. Due largely to concerns about exploitation and the impact on work available for employees, however, both Massachusetts and federal law carefully restrict workers who qualify as “volunteers” and “trainees.” Many employers use these terms loosely and often do not realize that a “volunteer” or “trainee” position must meet very specific requirements to qualify as exempt from minimum wage, as set forth below. Massachusetts also excludes certain groups of employees from the minimum wage requirement, including those performing agricultural and farm work, persons in religious orders, and those performing outside sales work.126 The FLSA excludes a broader group of employees, including but not limited to amusement park workers, fishermen, agriculture employees, employees of newspapers with limited circulation, switchboard operators, seamen, babysitters and those providing companionship services to the infirm, and criminal investigators.127 1. Volunteers There is very little statutory or judicial guidance under either Massachusetts or federal law regarding when an individual may be considered a volunteer. Given this lack of guidance, the federal DOL (the entity tasked with enforcing the FLSA) has issued a series of opinion letters defining who is a volunteer under the FLSA. Because Massachusetts applies the same federal test for determining 124 454 C.M.R. § 27.08. 125 As noted, the Massachusetts minimum wage is higher than the federal minimum wage. Therefore, an employee who is exempt from minimum wage under the FLSA but not state law must still receive the higher Massachusetts minimum wage. 126 M.G.L. ch. 151, § 2. “Agriculture or farm work” is defined as “labor on a farm and the growing and harvesting of agricultural, floricultural and horticultural commodities.” Id. As discussed in detail in Section VI.B.1, “outside sales work” is defined as work “regularly performed by outside salesmen who regularly sell a product or products away from their employer’s place of business and who do not make daily reports or visits to the office or plant of their employer.” Id. 127 29 U.S.C. § 213(a). Each of these categories contains additional requirements that an employee must meet before he or she becomes exempt from the FLSA’s minimum wage requirement.
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