26 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP Wage Law.149 In April 2023, however, the DLS issued a new Opinion Letter stating that it “will continue to follow USDOL guidance and adopt the primary beneficiary test.”150 In adopting the DOL’s primary beneficiary test, the DLS stated that will take a “totality of the circumstances approach” to evaluate internship programs, based on the seven factors identified by the DOL. Under that approach, examples of qualifying training programs under Massachusetts law included: Students in a university’s co-op program because successful completion of their internships was a graduation requirement, making it an integral part of their education151 High school students in a vocational training program because the experience was part of each student’s Individual Education Plan, they received academic credit for work performed, and they were carefully supervised152 Students at a for-profit school for troubled youth who participated in a culinary skills program that followed a set curriculum and who were closely supervised by a faculty member153 A program requiring troubled high school students to perform janitorial work, the primary purpose of which was to prepare students to “navigate a work environment” and cope with its demands (despite the menial tasks being performed—dishwashing, sweeping, garbage removal—the DLS narrowly granted trainee status because the program was “genuinely designed to ready the students for the workplace”)154 D. The Payment of Special Sub-Minimum Wages In addition to the exemptions to minimum wage, some employees may receive special subminimum wages under certain conditions. These employees include some tipped employees, certain student workers, and some disabled workers. 149 DLS Opinion Letter MW 2011-02 (May 9, 2011) (adopting the refined six-factor test set out in 2010 DOL Fact Sheet); DLS Opinion Letter MW-2003-002 (Feb. 10, 2003). Massachusetts law also includes a “qualified trainee” exemption for bona fide executive, administrative, and professional trainees, which does not appear in the FLSA. See M.G.L. ch. 151, § 1A(3). The statute does not define the term “qualified trainee,” and there is no case law interpreting the exemption. There is therefore no guidance as to which employees qualify for the “qualified trainee” exemption. Similarly, Massachusetts offers an overtime exemption for “learner[s]” and “apprentice[s].” See M.G.L. ch. 151, § 1A(5). However, because there are no similar federal exemptions, employers must find different FLSA exemptions that would apply to these employees in order to take advantage of the state exemptions. 150 DLS Opinion Letter (April 14, 2023). 151 DLS Opinion Letter MW-2001-017 (Nov. 19, 2001). 152 DLS Opinion Letter MW-2003-002 (Feb. 10, 2003). 153 DLS Opinion Letter MW-2002-005 (Feb. 20, 2002). 154 Id.
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