28 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP Federal law also allows the payment of special sub-minimum wages to certain student workers.163 Student workers who fall into the narrow categories listed above also are likely to satisfy the federal requirements.164 3. Workers with Disabilities Both Massachusetts and federal law allow employers to pay a special sub-minimum wage to certain workers with disabilities.165 In order to pay the special sub-minimum wage, an employer must first obtain certificates from the Massachusetts Director of the Department of Labor Standards166 and the Administrator of the DOL’s Wage and Hour Division.167 The DLS Director will not issue a certificate unless the employer has already obtained a certificate from the DOL.168 Massachusetts law defines a disabled worker as an “employee whose earning capacity is impaired by age or physical or mental deficiency or injury, or . . . an employee who is certified by the secretary of health and human services . . . as a handicapped person . . . .”169 Unfortunately, there is limited Massachusetts authority interpreting this provision. As a result, employers may look to the relevant federal law for guidance since the Massachusetts and federal provisions are, in large part, consistent with one another. Employers should be aware, however, that federal law in this area is more detailed and thus may be interpreted or enforced differently. Under the FLSA, “workers with disabilities” include those whose “productive capacity” is impaired by physical or mental disability, age, or injury.170 Such disabilities may include blindness, mental illness, mental retardation, cerebral palsy, or substance abuse.171 Conditions that do not qualify as disabilities for sub-minimum wage purposes include vocational, social, cultural, or educational disabilities, chronic unemployment, receipt of welfare benefits, nonattendance at school, juvenile delinquency, and being on parole or probation.172 Employers that pay disabled 163 29 U.S.C. § 206(a)(1), as amended by Pub. L. No. 114-187 § 403. 164 29 C.F.R. §§ 519.2 and 520.201. Under the FLSA, additional categories of student workers may qualify for sub-minimum wages, including full-time students working in retail, agriculture, or educational institutions; student-learners participating in bona fide vocational training programs; apprentices learning skilled trades through registered programs; and learners who are being trained for skilled occupations but who, when initially employed, produce little or nothing of value. Id. (Employers interested in obtaining a certificate allowing them to pay a sub-minimum wage should contact the U.S. Department of Labor, Wage and Hour Division regional office with jurisdiction over their state. The Northeast Region office can be reached at (215) 861-5800.) 165 29 C.F.R. § 525.9; M.G.L. ch. 151, § 9. 166 M.G.L. ch. 151, § 9; 454 C.M.R. §§ 27.02 and 27.06. 167 29 C.F.R. § 525.7. 168 454 C.M.R. § 27.06. See also DLS, Application for Waiver of Minimum Wage for Employees with Disabilities, available at https://www.mass.gov/doc/employees-with-disabilities-minimum-wage-waiver/download (last visited Mar. 5, 2025). 169 M.G.L. ch. 151, § 9. 170 29 C.F.R. § 525.3(d); DOL Compliance Poster, Employee Rights for Workers with Disabilities Paid at Special Minimum Wages (Jan. 2018), available at http://www.dol.gov/whd/regs/compliance/posters/disabc.pdf (hereinafter, “Disabilities Poster”) (last visited Mar. 5, 2025). 171 29 C.F.R. § 525.3(d). 172 Id.
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