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Exempt employees and day of rest statute

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  • Exempt employees and day of rest statute

    Are exempt employees included in MA's day of rest statute (Chapter 149, section 48? The statute immediately preceeding the one day of rest in seven statute, chapter 149 section 47, also requires that if an employee of a commercial occupation works on a sunday they must receive one day off in the next six days. Does this apply to expempt employees?

  • #2
    Can someone please provide some guidance on this issue. I just need to know if exempt employees are eligible for the one day of rest in seven or if this just applies to non-exempts.

    Thanks

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    • #3
      Hang in there. This is the first work day back after the weekend. Someone who knows the answer will respond soon.
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

      Comment


      • #4
        Patty, thanks for buying me some time.

        The exceptions to the rest day rule (c. 149, sec. 48) don't rely on exempt vs. non-exempt status. We just need to know where you work and what you do.

        Here's how the rules fit together.

        They examine the type of establishment: manufacturing, mechanical or mercantile, with the exception of establishments used for the manufacture or distribution of gas, electricity, milk or water, to hotels, to the transportation of food, nor to the sale or delivery of food by or in establishments other than restaurants. see sec. 49.

        And they are geared towards the type of labor performed at the establishment (shall not apply to (a) janitors; (b) employees whose duties include no work on Sunday other than (1) setting sponges in bakeries, (2) caring for live animals, (3) caring for machinery; (c) employees engaged in the preparation, printing, publication, sale or delivery of newspapers; (d) farm or personal service; (e) any labor called for by an emergency that could not reasonably have been anticipated; (f) pharmacists employed in drug stores. see sec. 50).

        Sec. 50A also has special rules for watchmen and employees maintaining fires.

        The Attorney General can grant special exemptions to the rule on a case by case basis, but not for more than 60 days.

        Lastly, Sec. 51 provides that, "Before operating on Sunday, every employer subject to section forty-eight or fifty A shall post in a conspicuous place on the premises a schedule containing a list of his employees who are required or allowed to work on Sunday, and designating the day of rest for each. No employee shall be required or allowed to work on the day of rest designated for him"

        So, you don't really look to exempt v. non-exempt to know the answer. We just need to know where you work and what you do.

        Hope that helps.
        Phil
        Last edited by CompensationCounsel; 12-19-2005, 01:59 PM.
        This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

        This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

        Comment


        • #5
          Thank you for your responses. I think that answers my questions. I didn't think the application of these statutes depended upon whether or not the employee was exempt but I was just trying to clarify.

          Thanks again for your help.

          Comment


          • #6
            I have a follow-up question.

            Assuming that the one day of rest in seven does apply to exempt employees, does "every seven consecutive days" mean any seven days or the employer's work week or a caledar week. It seems that a lot of other states define in their day of rest statute what time period is involved but MA law just says "every seven consecutive days" with no explanation or description.

            Thanks

            Comment


            • #7
              Phil can correct me if I'm wrong for MA, but in most if not all states that have a one-day-of-rest-in-seven statute, it refers to the corporate work week AND it does not have to be the same day in each 7-day period. The following example would be legal in most states with such a provision:

              Corporate work week is Sun-Sat and in week one the employee works Monday, Tuesday, Wednesday, Thursday, Friday, Saturday; in week two employee works Sunday, Monday, Tuesday, Wednesday, Thursday and Friday.

              In week one employee had Sunday off; in week two employee had Saturday off. In both weeks employee had one day of rest in the corporate work week; employee worked 12 days in succession.

              I don't know of anything in the MA law that makes the above illegal. Phil?
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

              Comment


              • #8
                Basically, yes.

                c. 149, sec. 48 requires that employers (with some exceptions), must allow at least 24 consecutive hours of rest in every 7 consecutive days, which effectively means after 6 days.

                There are employers that put the 6-day periods back-to-back, and I don't think anyone has challenged that in court. I'll have to check on that.

                But keep in mind that the Blue Laws (aka the "Sunday Law") are in play, too, so Sunday may still be a day of rest for many employees.
                This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

                This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

                Comment


                • #9
                  I don't think that the courts have challenged that either and I am looking for a possible defense if an employee does question a schedule requiring them to work more than 6 days in a row but always having a day of rest in each work week. I have searched extensively and cannot find any backup except showing how other states have interpreted substantially similar statutes.

                  Very frustrating...

                  Comment


                  • #10
                    Phil,

                    In your opinion does this statute protect employees working in an office? There is no court interpretation of the statute and I want to make sure that a schedule requiring employees to work more than seven consecutive days (which would span over two different calendar/work weeks) does not violate this statute. In every situation the employees would be allowed a minimum of 2 days of rest in each week and if required to work on a Sunday they would always receive a day of rest in the following seix consecutive days (I think that is in regards to 149 section 47). Any other advice you give would be greatly appreciated as to what you think the scope of the statute is. It seems to me that it was really intended to protect employees putting in physical labor and not an employee merely sitting at a computer but I can't find any backup for this.

                    Thanks!

                    Comment


                    • #11
                      c. 149, sec. 48 certainly applies to office workers.

                      But if you need advice, please be aware that, unfortunately no one on this board is giving you legal advice through these postings - even those of us who are attorneys. Hence the very important notice below my signature.

                      If you need advice you can rely upon for your business or otherwise, you should hire an attorney who can ask you all the pertinent questions, fully undnerstand your specific situation and give you a thoughtful, reliable answer.

                      You should not rely on what you see here. This is just a discussion board.

                      Sorry for the harsh soundng disclaimer, but you must understand clearly that you are not my client.

                      In any case, I wish you all the best in your endeavors.

                      Phil
                      This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

                      This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

                      Comment


                      • #12
                        I completely understand that you are not giving legal advice and I appreciate the information that you have provided me with.

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