There are two overtime laws that apply to Massachusetts employees: the federal Fair Labor Standards Act and the Massachusetts Overtime Law. There is a lot on the web about the federal law, but this posting will mainly be about the Massachusetts Overtime law, which, like the Massachusetts Wage Act, provides for treble damages and attorneys’ fees for prevailing plaintiffs. However, the discussion at the bottom of the page about the executive, administrative, professional, and outside sales exemptions will apply to both the state and federal laws.
The basic part of the law, which is found at MGL c. 151, Section 1A, requires employees to receive time and a half (one and a half times their regular rate of pay) for hours worked in excess of 40 in a week unless they are exempt from overtime. There are many types of “exempt” employees, and the devil is in the details with these exemptions. Below are the ones specifically listed in the Massachusetts law. However, there are more exemptions under Massachusetts law than under federal law, so if you are exempt from overtime under one of these exemptions, you still may be entitled to overtime under the federal law. Employees are exempt when they work as or in the following places and capacities:
(1) as a janitor or caretaker of residential property, who when furnished with living quarters is paid a wage of not less than thirty dollars per week.
(2) as a golf caddy, newsboy or child actor or performer.
(3) as a bona fide executive, or administrative or professional person or qualified trainee for such position earning more than eighty dollars per week.
(4) as an outside salesman or outside buyer.
(5) as a learner, apprentice or handicapped person under a special license as provided in section nine.
(6) as a fisherman or as a person employed in the catching or taking of any kind of fish, shellfish or other aquatic forms of animal and vegetable life.
(7) as a switchboard operator in a public telephone exchange.
(8) as a driver or helper on a truck with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section two hundred and four of the motor carrier act of nineteen hundred and thirty-five, or as employee of an employer subject to the provisions of Part 1 of the Interstate Commerce Act or subject to title II of the Railway Labor Act.
(9) in a business or specified operation of a business which is carried on during a period or accumulated periods not in excess of one hundred and twenty days in any year, and determined by the commissioner to be seasonal in nature.
(10) as a seaman.
(11) by an employer licensed and regulated pursuant to chapter one hundred and fifty-nine A.
(12) in a hotel, motel, motor court or like establishment.
(13) in a gasoline station.
(14) in a restaurant.
(15) as a garageman, which term shall not include a parking lot attendant.
(16) in a hospital, sanitorium, convalescent or nursing home, infirmary, rest home or charitable home for the aged.
(17) in a non-profit school or college.
(18) in a summer camp operated by a non-profit charitable corporation.
(19) as a laborer engaged in agriculture and farming on a farm.
(20) in an amusement park containing a permanent aggregation of amusement devices, games, shows, and other attractions operated during a period or accumulated periods not in excess of one hundred and fifty days in any one year.
Most of these exemptions just exist in the state, and not the federal, law. However, the important general exemptions, the so-called executive, professional, administrative, and outside sales exemptions, exist under both sets of laws. These general exemptions are “essentially identical” under the state and federal laws, see Swift v. AutoZone, Inc., 441 Mass. 443, 806 N.E.2d 95, 98 (2004), so Massachusetts courts look to the more plentiful federal precedent when interpreting them. Here are the requirements for each general exemption:
- You make more than $455 per week;
- Your primary duty is managing the business or a subgroup of the business;
- You regularly supervise the work of two or more full-time employees; and
- You have the authority to hire or fire other employees, or your suggestions and recommendations about the hiring, firing, advancement, promotion, etc. of other employees is given “particular” weight.
Note: This is the tough one. Many, many people are exempt under this flexible definition, and the courts have tended to interpret it liberally in favor of employers.
- You make more than $455 per week;
- Your primary duty is office or non-manual work directly related to the management or general business operations of your employer or your employer’s customers; and
- Your primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
- You make more than $455 per week;
- Your primary duty is the performance of work requiring “advanced knowledge”, i.e. work which is mainly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; and
- The advanced knowledge must be in a field of science or learning; and
- The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
“Creative” Professional Exemption
- You make more than $455 per week; and
- Your primary duty is work that requires invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
Outside Sales Exemption
- Your primary duty must be making sales, or obtaining orders or contracts for services or for the use of facilities; and
- You must customarily and regularly work away from your employer’s place(s) of business.
Most of these exemptions speak for themselves, but the administrative exemption is tricky. It has three broad requirements: (1) salary basis, (2) management, and (3) discretion. The “management” requirement is the toughest.
To meet this requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment. […] Work directly related to management or general business operations includes work in functional areas such as finance, quality control, and personnel management.
Cash v. Cycle Craft Co., 508 F.3d 680 (1st Cir. 2007); see also Reich v. John Alden Life Insurance Co., 126 F.3d 1 (1st Cir. 1997) and Hines v. State Room, No. 10-2298 (1st Cir. 2011). Many people service a business in an administrative capacity and do not perform the production-type work generally necessary to avoid coverage under the administrative exemption. This is where most of the battles in the overtime exemption context are fought, and employees have been losing. Any employee seeking to bring an overtime case based on being wrongly classified as exempt should look very carefully at the administrative exemption. However, it warrants mention that the Department of Labor regulations interpreting the exemption were modified in 2004 to depreciate the old production/staff dichotomy, which, in many ways, was anachronistic in a modern service economy. The regulations can be viewed here (opens PDF). A non-manufacturing employee can be a “production” employee when the employee’s job is to generate the product or service that the business offers to the public.