© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 95 To qualify as a “seasonal” establishment, a business must meet one of two criteria: (1) it must not operate for more than seven months in any calendar year; or (2) during the preceding calendar year, its average receipts for any six months must have been less than one-third of its average receipts for the other months of the year.544 Under the seven-month test, the business must demonstrate that it “operates” for not more than seven months per year, but it need not shut down completely or terminate every employee during the remaining five months.545 If an establishment meets all the requirements for the seasonal exemption, it is exempt from the FLSA’s minimum wage and overtime requirements, even if it is owned by a larger business that does not qualify in its entirety.546 However, a separate business that operates within a recreational or seasonal establishment (e.g., a concessionaire leasing space at an amusement park) will not qualify for this exemption unless it independently meets all the criteria for the seasonal exemption.547 Once a business qualifies for the exemption, employees performing routine work that is incident to its operation are exempt for the entire year.548 b. Massachusetts Seasonal Exemptions Massachusetts law provides two overtime exemptions that may cover seasonal employees. Both of these provide an exemption only from overtime, not minimum wage. The Massachusetts “amusement park exemption” applies to employees of amusement parks that contain “a permanent aggregation of amusement devices, games, shows, and other attractions” and that operate for less than 150 days in any one year.549 This turns on how many days the amusement park attractions are operated each year, not on how many days employees work at the facility each year.550 Additionally, the Massachusetts “seasonal exemption” applies to employees of businesses that are seasonal in nature and are open for business for less than 120 days in any one 544 29 U.S.C. § 213(a)(3). “Average receipts” have been defined using the accrual accounting method, see Adams v. Detroit Tigers, 961 F. Supp. 176 (E.D. Mich. 1997), and as monies actually received by the establishment regardless of the accounting method used to track receipts. See Bridewell v. Cincinnati Reds, 155 F.3d 828 (6th Cir. 1998) (Bridewell II). 545 Compare Jeffrey, 64 F.3d at 595 (applying exemption to groundskeeper who maintained a baseball complex during the sevenmonth off-season) with Bridewell v. Cincinnati Reds, 68 F.3d 136 (6th Cir. 1995) (Bridewell I) (declining to apply exemption to a business that employed 120 out of 700 employees year-round because the business was deemed to operate year-round as a result). 546 DOL Wage & Hour Opinion Letter FLSA2009-5 (Jan. 14, 2009) (lifeguards employed at town beach that was open only seven months each year were exempt because the beach qualified as seasonal establishment even though entire municipality did not). 547 DOL Wage & Hour Opinion Letter FLSA2009-11 (Jan. 15, 2009). The DOL found that a concessionaire at a privately owned recreational establishment did not qualify for the exemption because restaurants are not meant for amusement or recreation, and the restaurant and the qualifying establishment were separate legal entities. Id. Businesses are not “single entities” if (1) there is physical separation from other activities; (2) they functionally operate as separate units with separate records and bookkeeping; and (3) there is no interchange of employees between units. Id. See also Hill, 838 F.3d at 296 (applying exemption where company is a “concessionaire,” “which Congress intended to exempt if it also meets one of the seasonality tests.”). 548 DOL Wage & Hour Opinion Letter FLSA2000 (May 23, 2000). 549 M.G.L. ch. 151, § 1A(20). 550 Hickman v. Riverside Park Enterprises, Inc., No. 1684CV00572BLS2, 2019 WL 3331107, *3 (Mass. Super. June 21, 2019) (finding it irrelevant that some full-time and seasonal amusement park employees worked at park on additional days when none of the park’s attractions were in operation).
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