© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 43 IV. OVERTIME Under both Massachusetts and federal law, employers must pay certain employees at a rate of one and one-half times their “regular rate of pay” for all hours worked in excess of forty hours in a workweek.260 Federal overtime requirements are contained in the FLSA.261 While similar in many respects to the FLSA overtime provisions, Massachusetts has adopted its own overtime requirements as part of the Massachusetts Minimum Fair Wages Law.262 Massachusetts employers must apply whichever law provides the greatest protection for their employees. The following section focuses on how to calculate the overtime rate for “non-exempt” employees (i.e., those employees covered by the overtime provisions of the FLSA or the Massachusetts Minimum Fair Wage Law).263 Although the overtime requirements apply to a large number of employees, there are significant exceptions to the overtime pay requirements, which are discussed in Section IV. A. Calculation of the Regular Rate of Pay As explained above, overtime must be paid at a minimum of one and one-half times the employee’s “regular rate of pay.”264 Accordingly, it is important for an employer to understand what constitutes an employee’s “regular rate” and to know how to calculate this rate properly. The “regular rate of pay” is the amount of compensation that an employee receives for a typical hour of the workweek.265 For employees paid on an hourly basis, the regular rate of pay generally is their hourly rate. For employees who are paid on a basis other than an hourly rate (e.g., fixed salary or piece rate), the regular rate of pay is generally determined by dividing the employee’s total earnings for the week by the total number of hours worked during that week.266 Both federal and Massachusetts overtime laws regulate the types of compensation that must be included in an employee’s regular rate for purposes of calculating overtime. Because the types of compensation included are not identical, in certain circumstances the overtime compensation 260 29 U.S.C. § 207(a)(1); M.G.L. ch. 151, § 1A. Unlike some jurisdictions, neither Massachusetts nor federal law requires daily overtime pay when an employee works more than eight hours in one day. Employers are only obligated to pay overtime when a covered employee works more than forty hours in a given workweek regardless of how many hours were worked on any particular day. 261 29 U.S.C. § 207. 262 M.G.L. ch. 151. 263 This section addresses the calculation of the regular rate for purpose of paying overtime for hours in excess of forty per workweek. One issue that arises in litigation, however, is whether an employee worked any overtime without pay and whether the employer had actual or constructive knowledge that the employee was working the overtime. See, e.g., Vitali v. Reit Mgmt. & Research, LLC, 88 Mass. App. Ct. 99, 111 (2015) (reversing summary judgment in favor of employer due to factual dispute about whether employer knew or should have known that plaintiff did not take her full lunch breaks even though plaintiff failed to comply with work reporting procedures, noting that alleged work was done at plaintiff’s cubicle as opposed to off site and that employers bear the responsibility for ensuring time sheets are accurate). 264 M.G.L. ch. 151, § 1A; 29 U.S.C. § 207. 265 454 C.M.R. § 27.03; 29 U.S.C. § 207(e). 266 454 C.M.R. § 27.03; 29 C.F.R. § 778.200-778.225.
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