An employee who has a workweek longer than forty hours must receive compensation for the excess hours at a rate not less than one and one-half times the employee's "regular rate". (M.G.L.c. 151, s. 1A)
When an employee is paid on a piece work basis, salary, or any basis other than an hourly rate, the regular hourly rate is determined by dividing the employee's total weekly earnings by the total hours worked during the week. (454 CMR 27.02)
Working time does not include meal times during which an employee is relieved of all work-related duties. Working time includes rest periods of short duration, usually 20 minutes or less. (454 CMR 27.02)
For tipped employees the overtime rate is 1.5 times the full regular minimum wage rate minus the tip credit paid to that employee. (M.G.L.c. 151, s. 7) (454 CMR 27.03(3))
An employee required or directed to travel from one place to another after the beginning of or before the close of the work day shall be compensated for all travel time and shall be reimbursed for all transportation expenses. (454 CMR 27.04(4)(d))
Commissions, drawing accounts, bonuses, or other incentive pay based on sales or production are excluded in computing the"regular rate". (M.G.L.c. 151, s. 1A)
In any workweek in which an employee of a retail business is employed on a Sunday or certain holidays at a rate of one and one half times the regular rate, as provided in M.G.L.c. 136, s. 6, the hours so worked should be excluded from the calculation of overtime pay.
Exempt employees typically fall into one of four classifications:
The terms "bona fide executive, or administrative or professional person" have the same meaning as set forth in 29 CFR Part 541. (454 CMR 27.03(3))
An employer or its agent who discriminates against an employee because the employee has complained of a violation of M.G.L.c. 151 is liable for damages of not less than one month's wages but no more than two month's wages of such individual, costs of the suit and reasonable attorney's fees. (M.G.L.c. 151, s. 19)
Employees who have not been paid overtime or who have been retaliated against for making an overtime pay complaint to their employer or to the Massachusetts Attorney General can file an online complaint, choosing as the reasons for filing the complaint as "Non-payment of wages", "Overtime pay" and/or "Retaliation," with the Massachusetts Attorney General and then receive from the Attorney General a "private right of action" letter.
An action under M.G.L.c. 151 must be commenced within three years after the cause of action accrued; however, the limitation period is tolled from the date the employee files a complaint with the Attorney General until the date the Attorney General issues a letter authorizing a private right of action. (M.G.L.c. 151, s. 20A)
An employee who prevails in such an action will be awarded treble damages, as liquidated damages, for lost overtime compensation and shall also be awarded the costs of the litigation and reasonable attorneys' fees. (M.G.L.c. 151, s. 1B)
In the case of Jinks v. Credico (USA) LLC, 488 Mass. 691 (2021), the Massachusetts Supreme Judicial Court held that the appropriate test under the Massachusetts wage and hour laws to determine whether an entity is a joint employer is the multifactor test used to determine joint employer status under the Fair Labor Standares Act (29 U.S.C. s. 206). Under that test, courts consider the totality of circumstances of the relationship between the employee and the entity, guided by a framework of four factors: whether the entity (1) had the power to hire and fire the individual, (2) supervised and controlled the individual's work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.
In Sullivan v. Sleepy's LLC, 482 Mass. 227 (2019), the Massachusetts Supreme Judicial Court held that (1) employers must make separate and additional payments to one hundred percent commission sales employees to compensate them for every hour they worked over forty hours or on Sunday; and (2) draws and commissions cannot be retroactively allocated to meet these requirements even if those draws and commissions equaled or exceeded the minimum wage for the employees' first forty hours of work and one and one-half times the minimum wage for all hours worked over forty hours or on Sunday. See also Sutton v. Jordan's Furniture, Inc., 493 Mass. 728 (2024) [Note: the requirement to pay Sunday and holiday hours at the rate of time and one half was fully phased out in Massachusetts as of January 1, 2023. (Massachusetts Law About Overtime)]