© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 31 IV.A.11.176 This is an important difference from federal law and the laws of most states, which in certain circumstances allow employers to calculate overtime at the rate in effect at the time that overtime is worked. The Massachusetts Prevailing Wage statutes require that certain categories of employees of contractors and subcontractors on certain types of projects funded by the state or a municipality be paid a prevailing wage set by the DLS.177 The statutes are complex, and the requirements vary depending on the type of work being performed. Employees covered by the Massachusetts Prevailing Wage laws include those working on the construction of public works,178 those who operate trucks or other equipment in non-construction public works projects,179 those who move office furniture or fixtures for the state or a municipality,180 and those who clean and maintain state-owned buildings.181 1. Construction of Public Works in Massachusetts “Construction” is defined broadly to include any addition to or alteration of a public building or public work, including painting or installation of flooring, as well as certain work done prior to construction, including soil exploration and demolition of existing structures.182 However, DLS interpretive guidance states that the “addition or alteration” must be part of the public work itself. For example, assembling and placing furniture or other items for use in, but not affixed to, a public building is not “construction” work.183 The term “public works” is also broadly interpreted, and Massachusetts courts look to the functions ordinarily performed by local public works departments in determining the type of activities that are covered.184 176 M.G.L. ch. 149, § 26; DLS Opinion Letter MW-2006-002 (June 12, 2006) (noting that the Commonwealth’s overtime requirements apply equally to employees paid a prevailing wage); DLS Opinion Letter MW-2002-010 (Apr. 2, 2002) (noting that a federal law requiring overtime pay for any hours worked in excess of eight per day was repealed, and Massachusetts only requires overtime pay for hours worked in excess of forty per week); Mullally v. Waste Mgmt. of Mass. Inc., 452 Mass. 526 (2008) (addressing method for calculating overtime rate for employees earning prevailing wages). Overtime premiums must be calculated in addition to the prevailing wage and cannot be used to offset prevailing wage obligations. Id. An employer’s obligation to provide overtime compensation is discussed in Section IV. As set forth therein, there are significant differences between Massachusetts and federal law regarding the method of calculating the regular rate for employees who are paid at more than one rate during a single week. 177 M.G.L. ch. 149, § 26. 178 Id. 179 M.G.L. ch. 149, § 27F. 180 M.G.L. ch. 149, § 27G. 181 M.G.L. ch. 149, § 27H. While other sections of the Massachusetts Prevailing Wage laws apply to contracts with the Commonwealth of Massachusetts or any of its subdivisions, including counties and municipalities, Section 27H applies only to buildings owned or rented by the Commonwealth. The MBTA is not considered to be part of the Commonwealth for purposes of Section 27H. SEIU v. MBTA, No. 88-7299 (Mass. Super. 1990). 182 M.G.L. ch. 149, § 27D. 183 DLS, Topical Outline of Massachusetts Prevailing Wage Law, at 57 (May 2021), available at https://www.mass.gov/doc/prevailing-wage-topical-index/download (last visited Mar. 5, 2025). 184 See Commonwealth v. W. Barrington Co., 5 Mass. App. Ct. 416, 419 (1977) (street sweeping covered by M.G.L. ch. 149, § 27F).
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