© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 91 one month must derive from commissions on goods or services.510 In making the latter calculation, an employer must begin by choosing a “representative period”—ranging from one month to one year—that fairly and accurately reflects the fluctuation in the employee’s commission earnings over time.511 The employer may then calculate the proportion of the employee’s pay derived from commissions over the course of the representative period to determine whether the majority of the employee’s salary comes from commissions.512 The employer is required to document its reasons for choosing that representative period in its records.513 3. Motor Carrier Exemptions Both the Massachusetts Minimum Fair Wage Law and the FLSA exempt certain employees working with large motor vehicles from overtime pay requirements.514 However, these employees must still be paid minimum wage. In general, the Massachusetts motor carrier exemption closely tracks the Motor Carrier Act (MCA) exemption under the FLSA and thus a review of federal law will provide the parameters for the Massachusetts motor carrier exemption.515 Massachusetts also has a second exemption that applies to common carriers of passengers by motor vehicle, which is discussed below.516 a. Federal Motor Carrier Act Exemption The FLSA’s MCA exemption applies to (1) drivers, drivers’ helpers, loaders, and mechanics (2) who are involved in the transport of goods in interstate commerce and (3) whose work directly affects the safety of operation of a commercial vehicle (4) that weighs more than 10,000 pounds.517 The FLSA also exempts other groups from its overtime requirements regardless of vehicle weight, including those working on certain passenger vehicles, including school buses, chartered passenger vehicles, and buses engaged in public transportation.518 510 29 U.S.C. § 207(i)(2); 29 C.F.R. § 779.412(b). Moreover, the commissions must be earned as part of a bona fide commission plan. See Crawford v. Saks & Co., No. H-14-3665, 2016 WL 3090781, *5 (S.D. Tex. June 2, 2016) (employing four-factor test to find that commission plan where salespersons’ pay exceeded draws between 21 and 35 percent of time was bona fide plan). 511 29 C.F.R. § 779.417. 512 Id.; 29 C.F.R. § 779.414. 513 29 C.F.R. § 779.417(d). 514 29 U.S.C. § 213(b)(1); 29 C.F.R. § 782.1 et seq.; M.G.L. ch. 151, §§ 1A(8) and (11). 515 DLS Opinion Letter MW-2002-008 (Feb. 26, 2002). 516 See M.G.L. ch. 151, § 1A(11); M.G.L. ch. 159A. 517 29 U.S.C. § 213(b)(1); 29 C.F.R. § 782.1 et seq. While the FLSA exempts loaders and mechanics from overtime pay requirements, the Massachusetts motor carrier exemption does not. DLS Opinion Letter MW-2002-008 (Feb. 26, 2002) (“The state exemption, M.G.L. c. 151, § 1A(8), applies only to a subset of these workers: ‘a driver or helper on a truck.’”). 518 DOL Wage & Hour Fact Sheet #19 (Nov. 2009). Drivers of passenger vehicles are exempt if their vehicles are (1) designed or used to transport more than eight passengers, including the driver, for compensation; or (2) designed or used to transport more than fifteen passengers, including the driver, without compensation. Id.
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