© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 39 employee is free to leave but must carry a cell phone or pager, leave word at home, or notify the employer where he or she can be reached, the on-call time is not compensable.236 3. Reporting Pay Under Massachusetts law, if an employee is scheduled to work a shift of three or more hours and reports for duty, he or she is entitled to at least three hours of pay even if the employee is not assigned any work.237 For all hours actually worked, the employee must be paid his or her hourly rate of pay.238 Employers that pay wages that exceed the minimum wage may opt to pay only minimum wage for any hours not actually worked, but are strongly encouraged to communicate this to employees in advance to avoid any confusion or a claim for unpaid (or underpaid) wages.239 For example: If an employee is scheduled to work three hours, reports to work, and performs three hours of work, the employee is owed three hours of pay at his or her normal hourly rate. If an employee is scheduled to work three hours, reports to work, and performs only one hour of work, the employee is owed one hour of pay at his or her regular hourly rate and two hours of pay at an hourly rate of minimum wage or above. If an employee is scheduled to work five hours, reports to work, and there is no work for the employee to perform, the employee is owed three hours of pay at an hourly rate of minimum wage or above. If an employee is scheduled to work three hours, but the employer calls and speaks with the employee prior to the time the employee reports to work to notify the employee that he or she should not report to work, the employee is owed nothing because he or she did not report to work. The reporting pay requirement does not prohibit an employer from having regularly scheduled shifts that are less than three hours in duration.240 In addition, an employer is not required to 236 See 29 C.F.R. § 785.17; DOL Wage & Hour Opinion Letter FLSA2009-17 (Jan. 16, 2009) (on-call time not compensable where employees carried mobile telephones but were free to travel and pursue leisure activities so long as they stayed within an hour’s drive of job site). 237 454 C.M.R. § 27.04(1). 238 DLS Opinion Letter MW-2007-002 (July 9, 2007). 239Id. 240 DLS Opinion Letter MW-2000-006 (Oct. 13, 2000) (“[The requirement] does not prevent employers and employees from reaching an agreement that an employees’ [sic] regular daily hours will consist of fewer than three hours, compensated at the minimum wage on an hour-for-hour basis. Rather [the provision applies] . . . to employees whose regularly-scheduled hours of work are curtailed by their employers due to lack of work.”) (emphasis in original).
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