38 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP time, they must pay employees when they work through them.229 If an employee performs unauthorized work during a meal break, and the employer has actual or constructive knowledge that work was performed during that time, the employer must compensate the employee.230 However, if the employer does not know, and has no reason to know, that an employee was working, the employer has no obligation to compensate the time.231 In Salvas v. Wal-Mart Stores, Inc., the SJC held that bargained-for contractual benefits, including unpaid meal breaks, have value and that employees who are deprived of their meal breaks “[l]ike any other party deprived of the benefit of their bargain . . . should be awarded damages that are ‘the equivalent in money for the actual loss sustained by the wrong of another.’”232 This ruling, plaintiffs’ attorneys often argue, could give employees who have been deprived of contractually mandated meal breaks a claim against employers for breach of contract, even if they do not have a statutory claim for nonpayment of wages. 2. On-Call Time Both Massachusetts and federal law dictate when an employee must be paid for on-call time. Under both, whether or not on-call time is compensable depends upon how the employee may use the time. If the employee must remain on the employer’s premises, or is so restricted offpremises that he or she cannot use the time freely, then the employee must be compensated.233 On-call staff members who are allowed to relax when required to remain on company premises must nonetheless receive compensation because they do not have the freedom to pursue their own activities.234 Employers must also pay on-call employees who are permitted to leave the premises if they must remain so close to the work site that they cannot use the time effectively for their own purposes.235 On the other hand, if an on-call employee is free to leave the work site and pursue activities of choice, then the employer need not compensate the time. Likewise, when an 229 DLS Opinion Letter MW-2005-002 (Apr. 27, 2005); Meal Breaks, supra note 216. 230 DLS Opinion Letter MW-2005-002 (Apr. 27, 2005) (citing 29 C.F.R. § 785.11; Republican Publ’g Co. v. Am. Newspaper Guild, 172 F.2d 943, 945 (1st Cir. 1949); and Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981) (an employer that knows, or should know, that an employee is working cannot stand idly by and allow an employee to perform work without the appropriate compensation)). 231 Id. (citing Prime Commc’ns, Inc. v. Sylvester, 34 Mass. App. Ct. 708, 711 (1993) and Forrester, 646 F.2d at 414 (where an employer has no knowledge that an employee is working, and the employee fails to notify the employer or deliberately prevents the employer from discovering the work, the employer’s failure to pay is not a violation of the FLSA)). 232 Salvas, 452 Mass. at 375. 233 29 C.F.R. § 785.17; 454 C.M.R. § 27.04(2). The U.S. Supreme Court distinguishes between employees who were “engaged to wait” and employees who “waited to be engaged”—the key difference being whether employees have the freedom to pursue the leisure activities of their choice while waiting to be called to work. Skidmore v. Swift & Co., 323 U.S. 134, 137 (1944). 234 29 C.F.R. § 785.17; 454 C.M.R. § 27.04(2). See also Skidmore, 323 U.S. at 139 (finding no evidence that the time on-call employees were allowed to spend relaxing on employer’s premises, “even though pleasurably spent, it was spent in the ways the [employees] would have chosen had they been free to do so”). 235 29 C.F.R. § 785.17; 454 C.M.R. § 27.04(2). See also DLS Opinion Letter MW-2002-019 (June 28, 2002) (noting that time between split shifts is compensable when “the period of inactivity is too unpredictable, or is of such short duration, that the employee is prevented from effectively using the time for his or her own purposes and, therefore, the employee remains ‘on duty’”).
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