The Business Litigation Session of the Massachusetts Superior Court for Suffolk County heard the defendants’ summary judgment motion in our case, Devito v. Longwood Security Services, Inc., a certified class action on behalf of a group of security officers who, during breaks, had to remain in job sectors, monitor their radios, remain in uniform, and respond to calls as needed. These officers, despite performing the majority of their normal job duties while on break, had their pay from these “break” times auto-deducted from their paychecks each shift.
The defendants argued that a federal test about what counts as work should apply to our claims under the Massachusetts Wage Act and Massachusetts Overtime Law. We argued that, instead, a relieved-of-all-duties test should apply, as this test is found in our state regulations and is consistent with Massachusetts wage laws. Under the relieved-of-all-duties test, an employer cannot deduct time from an employee’s paycheck for a break unless that employee is relieved of all of their work duties during their break.
The federal courts have declined to follow a federal Department of Labor regulation (which also calls for use of a relieved-of-all-duties test) and instead have adopted a more employer-friendly test, known as the predominant benefit test. Instead of asking whether an employee had any duties while on break, the federal test asks who gets the most benefit from a break period when you weigh the duties and liberties during that period. If the employee is seen to be the recipient of the majority of the benefit during a break period, the employer can deduct the break time from the employee’s paycheck. This test means that an employer can make an employee perform some duties on breaks, pay nothing, and get free work.
The federal courts have endorsed this test due to old Supreme Court precedent, the fact that the federal Department of Labor relieved-of-all-duties regulation doesn’t have the force of law, and perhaps due to some general skepticism about employee claims. We argued, and Superior Court Judge Leibensperger agreed, that our state regulation, which applies the relieved-of-all-duties test, should apply to our claims because the regulation is unambiguous and has the force of law in Massachusetts. This decision will provide important guidance about what constitutes break time versus work time in Massachusetts.
The decision can be viewed here. Our firm is co-counsel in this case with Elizabeth Ryan of Bailey & Glasser, LLP.