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Mass-Peculiarities - 2025 Edition

Table of Contents VI
Introduction 1
I. THE MASSACHUSETTS WAGE ACT 2
A. Wages Under Massachusetts Law 2
1. What Is Included in Wages (and What Is Not)? 2
2. Commissions 3
3. Vacation Pay 4
a. Caps and “Use It or Lose It” Policies 5
b. General “Leave” Category 6
c. Designation of Accrual Rate 6
d. Unlimited Vacation Policies 7
e. Changes to Vacation Policies 7
4. Earned Sick Time 7
5. Severance Payments 8
6. Bonuses 8
a. Discretionary Bonuses 8
b. Formulaic Bonuses 9
7. Stock 9
8. Expense Reimbursements 9
B. Frequency and Timing of Payment 10
1. How Frequently Must Wages Be Paid? 10
2. When Must Wages Be Paid? 10
3. Payment of Wages Upon Termination 11
C. How Must Wages Be Paid? 11
1. Checks and Drafts 11
2. Direct Deposit 12
3. Pay Cards 12
D. When Are Wages “Earned”? 12
E. What Deductions Can an Employer Make from an Employee’s Wages? 13
1. Mandatory Deductions 13
2. Deductions Authorized by Statute 14
a. Deductions for Lodging and Meals 14
(1) Lodging 14
(2) Meals 14
(3) Deductions and the Calculation of Overtime 15
b. Uniforms – Deductions Not Allowed 15
c. Other Statutorily Permissible Deductions 16
3. Deductions Not Specifically Listed Above 16
4. Employee Notification of Deductions 18
F. Unclaimed Wages 18
II. MINIMUM WAGE 18
A. The Minimum Wage Rate in Massachusetts 19
1. Coverage Under the Massachusetts Minimum Fair Wage Law 19
2. Coverage Under Federal Minimum Wage Law 20
B. The DLS’s Minimum Wage Regulations 20
C. Exemptions from Massachusetts and Federal Minimum Wage Law 21
1. Volunteers 21
2. Interns/Trainees 23
a. The Federal Exemption for Interns 23
b. Massachusetts Exemption for Interns 25
D. The Payment of Special Sub-Minimum Wages 26
1. Tipped Employees 27
2. Student Workers 27
3. Workers with Disabilities 28
E. The Prevailing Wage for Work on Public Contracts 30
1. Construction of Public Works in Massachusetts 31
2. Operation of Equipment in Public Works in Massachusetts 33
3. Other Prevailing Wage Provisions in Massachusetts 33
4. Davis-Bacon and Related Acts 34
III. HOURS OF WORK & COMPENSABLE TIME 34
A. The Workweek 34
B. Compensable “Working Time” 35
1. Meal Breaks 35
a. Exemptions 36
b. Liability for Missed, Late, or Short Breaks and Failure to Compensate Employees for Work Performed During Breaks 36
2. On-Call Time 38
3. Reporting Pay 39
4. Sleep Time 40
5. Compensable Travel Time 40
a. Commuting Time 41
b. Overnight Travel 42
c. Travel in a Company Vehicle 42
IV. OVERTIME 43
A. Calculation of the Regular Rate of Pay 43
1. Compensation Included in the Calculation of the Regular Rateof Pay Under Federal Law 44
2. Compensation Excluded from the Calculation of the RegularRate of Pay Under Federal Law 45
3. Additional Compensation Excluded from the Calculation of the Regular Rate of Pay Under Massachusetts Law 45
4. Determining Whether to Apply the Massachusetts or Federal Calculation of the Regular Rate 46
5. Calculation of the Regular Rate for an Hourly Employee 46
6. Calculation of the Regular Rate for an Employee Paid on a Commission Basis Only 46
7. Calculation of the Regular Rate When a Bonus Is Included in the Rate 47
8. Calculation of the Regular Rate for an Employee Paid by a Method Other Than an Hourly Rate 48
a. Piecework 48
b. Day Rates and Job Rates 49
c. Semi-Monthly or Monthly Salary 49
9. Calculation of the Regular Rate Using the Fluctuating Workweek Method (FWW) 50
10. Calculation of the Regular Rate Using the Fixed Salary Method 52
11. Calculation of the Regular Rate for an Employee Working at Two or More Rates 53
B. Sunday and Holiday Overtime Pay Requirements 54
V. EXEMPTIONS FROM OVERTIME 54
A. White Collar Exemptions 55
1. Minimum Compensation Requirements 56
2. Salary Basis Test 57
a. Compensation Paid in Addition to Salary 58
b. Deductions from Salary 58
(1) Deductions for Disciplinary Reasons 59
(2) Deductions for Personal Absences 60
(3) Deductions for Sickness or Disability 60
(4) Deductions Taken Pursuant to the Family and Medical Leave Act and Massachusetts Leave Laws 60
(5) Deductions from Vacation or Leave Banks 61
(6) Responses to Downturns in Business: Reductions in Pay and Furloughs 62
c. Violations of the Salary Basis Test 63
d. Safe Harbor for Employers That Make Impermissible Deductions 64
3. Duties Tests for White Collar Exemptions 65
a. Executive Employee Exemption 65
(1) Management Duties 66
(2) A Customarily Recognized Department or Subdivision 67
(3) Directing the Work of at Least Two or MoreFull-Time Employees 68
(4) Authority Necessary to Qualify as an Executive 68
(5) Application of Executive Exemption to an Employee Who Performs Both Exempt and Non-Exempt Duties 69
b. Administrative Employee Exemption 71
(1) Primary Duty Is Office or Non-Manual Work Directly Related to the Management or General Business Operations of the Employer 72
(2) Exercise of Discretion and Independent Judgment 74
(3) Matters of Significance 76
(4) Examples of Positions That Qualify for the Administrative Exemption 77
(5) Examples of Positions That Do Not Qualifyfor the Administrative Exemption 78
c. Professional Exemption 79
(1) Learned Professional Exemption 79
(2) Creative Professional Exemption 82
d. Computer Professional Exemption 84
4. Highly Compensated Employee Exemption 86
B. Other Exemptions 87
1. Outside Sales Exemption 87
a. Federal Outside Sales Exemption 87
b. Massachusetts Outside Sales Exemption 89
2. Federal Commissioned Inside Sales Exemption 90
3. Motor Carrier Exemptions 91
a. Federal Motor Carrier Act Exemption 91
b. Massachusetts Motor Carrier Exemption 93
c. Massachusetts Common Carrier Exemption 94
4. Seasonal Exemptions 94
a. Federal Seasonal Exemption 94
b. Massachusetts Seasonal Exemptions 95
5. Blanket Exemptions for Certain Businesses 96
6. Other Massachusetts Exemptions 97
VI. TIPS AND SERVICE CHARGES 98
A. Definition of a Tip or Service Charge 99
B. The Sharing of Tips and Service Charges 102
C. “No Tipping” Policies 105
D. Mandatory Pooling of Tips and Service Charges 105
E. The Tip Credit and Service Rate 106
F. Liability for Violations 108
G. Penalties for Violations 109
VII. MASSACHUSETTS EQUAL PAY ACT 109
A. “Comparable Work” 110
B. Permitted Justifications for Wage Differentials 111
C. Prohibition on Salary History Requests 112
D. Prohibition on Pay Secrecy Requirements 112
E. Self-Evaluation Defense 113
F. Damages 114
VIII. SUNDAYS, HOLIDAYS AND DAYS OF REST 114
A. Work on Sundays and Holidays 114
1. Default “Closure Rule” 115
2. Exemptions 115
3. Permits for Necessary Sunday Work or Labor 115
4. Employees Who Work in Retail Establishments 116
a. Voluntariness of Work Requirement 117
b. Former Sunday Premium Pay Requirement 117
5. Legal Holidays 118
6. Penalties for Violation of Sunday and Holiday Work Laws 121
B. Day of Rest Laws 122
1. One Day of Rest in Seven 122
2. Sunday Work Without a Day Off 123
3. Exemptions to the One Day of Rest in Seven and the Sunday Work Without a Day Off Provisions 123
4. Penalties for Violation 124
IX. JOINT EMPLOYMENT 125
X. CLASSIFYING WORKERS AS INDEPENDENT CONTRACTORS 128
A. The Threshold Question 129
B. The Massachusetts ABC Test for Independent Contractors 130
1. Level of Control Exercised by the Putative Employer 131
2. Services Provided Are Outside the Usual Course of Business 133
3. Independent Trade, Occupation, Profession, or Business 136
C. Real Estate Brokers Are Exempt from the ABC Test 137
D. Franchisor-Franchisee Relationships 138
E. Liability for Misclassification as an Independent Contractor 138
XI. MANDATED TIME OFF AND MASSACHUSETTS LEAVE LAWS 140
A. The Massachusetts Earned Sick Time Law 140
1. Pay for Time Off Pursuant to the ESTL 142
2. Notification of Intent to Use Sick Time and Employee Certification 143
3. Effect of Termination and Breaks in Service and Recordkeeping and Notice Requirements 144
B. Massachusetts Leave for Domestic Violence Victims and Family Members 144
C. Massachusetts Paid Family and Medical Leave 147
1. Overview 147
2. Employee and Employer Contributions 148
3. Private Plan Exemptions 149
4. Notice and Posting Requirements 149
5. Maintaining Health Insurance and Other Benefits 151
6. Anti-Retaliation Provisions 152
D. Massachusetts Parental Leave Act 152
E. Small Necessities Leave Act 154
F. Civic Duty Leaves 156
1. Massachusetts Jury Duty Leave 156
2. Massachusetts Employees Testifying in a Criminal Action 157
3. Leave for Veterans Participating in Memorial Day or Veterans Day Activities 157
4. Military Leave 157
5. Time Off to Vote 158
XII. OTHER MISCELLANEOUS MASSACHUSETTS LAWS 158
A. Massachusetts Personnel Records Law 158
B. Temporary Workers Right to Know Law 160
1. Notice Requirements 161
2. Limitations on Fees Charged to Temporary Workers 162
3. Additional Restrictions 163
4. Enforcement and Penalties 163
C. Massachusetts Pay Transparency Act 164
XIII. ATTORNEY GENERAL’S OFFICE COMPLAINTS, INVESTIGATIONS AND ENFORCEMENT 166
A. Procedure for Filing a Complaint with the Office of the Massachusetts Attorney General 167
B. The Attorney General’s Investigatory Procedure 168
C. Criminal Penalties 168
D. Civil Penalties Imposed by the Attorney General 169
E. The Attorney General’s Means of Enforcement 170
XIV. CIVIL ENFORCEMENT BY PRIVATE LITIGANTS 171
A. Who is a Proper Plaintiff? 171
B. Potential Defendants Under The Wage Act, Including Individual Liability 172
C. Statutes of Limitations 173
D. Massachusetts Wage and Hour Class Actions 174
E. Defenses 175
F. Arbitration 177
G. Damages in Civil Lawsuits 179
H. Settlement 182
XV. EMPLOYEES COVERED BY A COLLECTIVE BARGAINING AGREEMENT 183
A. Is the Employer a Public or Private Entity? 183
B. Is the Dispute Subject to Mandatory Arbitration Under the CBA? 184
C. What Forms of Compensation In A CBA Can Be a Wage Under the Wage Act? 185
XVI. RETALIATION FOR COMPLAINTS REGARDING WAGE AND HOUR VIOLATIONS 186
XVII. WAGE ASSIGNMENTS & GARNISHMENTS 188
A. Assignments 188
B. Garnishments 189
1. Calculating Garnishments Under Massachusetts Law and the CCPA 189
2. Garnishments for Support Orders 191
3. Additional Protections for Members of the Military 192
4. Terminating Employees Subject to Garnishments 192
XVIII. POSTING REQUIREMENTS 193
A. General Wage and Hour Notices 193
B. Posting Days of Rest and Sunday Work 194
C. Posting Work Hours for Minor Employees 194
D. Posting the Special Minimum Wage Paid to Employeeswith Disabilities 195

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