© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 87 The exemption for highly compensated employees applies only to employees whose primary duty includes performing office or non-manual work.485 Thus, non-management production line workers and non-management employees in maintenance, construction, and similar occupations who perform work involving repetitive operations with their hands, physical skill, and energy (such as carpenters, electricians, mechanics, plumbers, craftsmen, operating engineers, longshoremen, and construction workers) are not exempt under this statute even if they satisfy the high salary threshold.486 The required total annual compensation of $107,432 or more may consist of commissions, nondiscretionary bonuses, and other nondiscretionary compensation earned during a 52-week period, but does not include credit for board or lodging, payments for medical or life insurance, or contributions to retirement plans or other fringe benefits.487 If an employee fails to earn $107,432 in the year—for example, if a commissioned employee receives less in commissions than anticipated—the employer may make one payment to the employee during the last pay period, or within one month after the end of the 52-week period, to bring the employee’s total annual compensation to at least $107,432.488 B. Other Exemptions 1. Outside Sales Exemption Both the Massachusetts Minimum Fair Wage Law and the FLSA provide an exemption from overtime requirements for outside sales employees. Outside sales employees are those who spend time calling on customers and sales prospects outside of the office. The Massachusetts and federal exemptions for outside sales employees overlap considerably, but their specific requirements differ. Accordingly, employers must confirm that an employee is exempt from both the state and federal requirements to avoid liability for overtime pay. a. Federal Outside Sales Exemption The FLSA exempts outside sales employees from both its overtime and minimum wage requirements.489 To qualify for this exemption, an individual must satisfy two criteria: (1) the employee must be employed either to make sales or to obtain orders or contracts for services or for the use of facilities;490 and (2) the employee must be customarily and regularly engaged away from the employer’s place or places of business.491 485 29 C.F.R. § 541.601(d). 486 Id. 487 29 C.F.R. § 541.601(b)(1). 488 29 C.F.R. § 541.601(b)(2). 489 29 U.S.C. § 213(a)(1). 490 29 C.F.R. § 541.500(a). 491 Id.
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