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Various Wage Questions- Massachusetts

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  • Various Wage Questions- Massachusetts

    My husband works at a video rental store and we both have some concerns reguarding how he is paid and on some other isssues.... so here are a bunch of questions...

    1) Are retail stores in MA required to pay time and 1/2 on Sundays?

    2) Which holidays are they required to pay time and 1/2?

    3) In a retail store are they legally allowed to make you work on Christmas Day?

    4) If you are scheduled for an 8 hr shift and they make you stay for 9 1/2 do they have to give you time and 1/2 or double pay for the extra 1 1/2?

    5) If the store is supposed to do inventory and enough people call in that they cannot and so reschedule the inventory day, can they make you come in for a few hours on your day off to do it?

    6) If a store has multiple branches can they require you to move to another branch?

    7) What is the state law on lunch breaks? My husband often doesn't get to finish eating because he is the only asst. manager/manager scheduled for a certain shift. Can they require you to stay on location and interupt your lunch in this situation?

    8) My husband was hired as a asst. manager in training at a much lower pay rate than the other training assistant managers and some cashiers, but he was promised a pay raise when he finished his training. He has been finished for 3 weeks and hasn't recieved his raise. Is this legal?

    thanks,

    L. Dravyn

  • #2
    Here is the Skinny Federally

    Not sure of the specifics of Massachusetts, but Federally, here is the low down:

    Overtime is paid after 40 hours of physically working during a week. For example, if your work week is Monday through Sunday and you work Monday through Thursday 9 hours each day and Friday is a holiday in which you are paid 8 hours but did not physically work, you total hours paid would be 44 hours. However, you would only be required to receive 44 hours at straight time because you did not physically work 4 hours of OT.

    So what ever your workweek, it is hours physically worked over 40 that are required. Now, in California, I know there are restrictions on a daily basis, however, I am not sure if that is true in Mass. So if Mass follows most other states, the additional hours in a day are not overtime unless the 40 hours per week are hit. So if he worked a 9.5 hour day one day and then only 6.5 the next, it equals out.

    This is for hourly employees only. Salaried can pretty much work any number of hours needed.

    As far as holidays, there are a number of ways that companies pay their employees to get them to work. There is no requirement that you must pay overtime or more than straight time for any given holiday. However, many companies will pay a premuim on that day to get people to work. Again, this is for hourly. For salaried, you are more than likely to pick up the slack when others don't make it in.

    As far as moving between branches, yes, the company can move you around if you are a manager. Typically they do not do that with hourly staff as they will just quit and move on. But if you are traveling between locations, you should be eligible for travel expense reimbursement whether you are driving or taking other forms of transportation.

    The issue of making you come in or not is a choice you are making, in regards to your inventory. In the retail business, life runs virtually 24/7. So if he plans on staying in this industry, be prepared for the radical issues. As a newbie, you may be required by your employer to work crazy hours or be on standby for inventory. That should have been discussed at the start of your employment.

    He can always say "no, I am not coming in." However, I am sure there would be reprecussions on the part of the employer that he is not fulfilling his duties.

    As far as the training, how was the increase promised? Was it verbal or was it written? When was the transition and has any documentation occurred to ensure that the training time has since elapsed and he has moved into the next phase. This may be as simple as an administrative error or a miscommunication. Legal only become an issue if you have it in writing, although you can argue who said what. But don't think you want to go that route.

    If you want to be a manager, you better plan on working lots of hours and learning a lot until you can get things in order. A lot of these issues, such as working a lot of hours or holidays, by hiring the proper staff and making sure he has backup's to his backup's in case anyone calls in sick or does not show.

    Comment


    • #3
      Just so you know, he is an hourly paid Asst. Manager... he is NOT salary.

      The training was a verbal promise... and it is not a clerical error... he has called the district manager a few times to get her to come for his review so he can get his raise and she just keeps putting it off. I think on purpose.

      Comment


      • #4
        1) Are retail stores in MA required to pay time and 1/2 on Sundays?

        Yes, MA is the only state which has such a requirement.

        2) Which holidays are they required to pay time and 1/2?


        New Years Day, Memorial Day, Independence Day, Labor Day, Columbus Day and Veterans Day. Again, MA is the only state that requires private employers to pay time and a half for ANY holidays.

        3) In a retail store are they legally allowed to make you work on Christmas Day?

        Yes.

        4) If you are scheduled for an 8 hr shift and they make you stay for 9 1/2 do they have to give you time and 1/2 or double pay for the extra 1 1/2?


        No.

        5) If the store is supposed to do inventory and enough people call in that they cannot and so reschedule the inventory day, can they make you come in for a few hours on your day off to do it?

        Yes.

        6) If a store has multiple branches can they require you to move to another branch?

        Yes.

        7) What is the state law on lunch breaks? My husband often doesn't get to finish eating because he is the only asst. manager/manager scheduled for a certain shift. Can they require you to stay on location and interupt your lunch in this situation?

        The state law requires that employees working a six hour or longer shift receive a half hour unpaid lunch break. Unless MA has changed the law since I last worked as an employee rather than a contractor (Phil?) it is questionable whether this applies to management. Nothing in the law prohibits them from either requiring him to stay on site or from interrupting the break; however, in either situation depending on exact circumstances they may be required to pay him for part or all of the break. The state recognizes (at least, they did as of three years ago when I called with this question for a client of mine) that circumstances exist which might make it impossible for a break to be taken, or taken uninterrupted, if there is only one staff member or manager on the premises at the time.

        8) My husband was hired as a asst. manager in training at a much lower pay rate than the other training assistant managers and some cashiers, but he was promised a pay raise when he finished his training. He has been finished for 3 weeks and hasn't recieved his raise. Is this legal?

        Unless there is a valid reason to believe that he is being paid less than the others because of his race, religion, national origin or other protected characteristic, or if the promise fulfils all the conditions of a contract (which is more likely in MA than in some other states but is by no means a guarantee) yes, it is legal. Nothing in the law says that all employees in the same job have to be paid an identical wage.
        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


        • #5
          Your questions raise a lot of issues. I'll try to be brief:

          1 and 4). Retail stores that employ more than 7 people (including the owner) are required to pay time and one half for Sunday work. The overtime requirement is for work WEEKS in excess of 40 hours, not days in excess of 8. Sunday work in retial stores at the time and a half pay rate do NOT count towards the 40 hour number.

          2 and 3.) For retail stores, the following days are considered holidays, to be treated like Sundays:

          New Years Day
          Memorial Day
          Independence Day
          Labor Day
          Columbus Day
          Veterans Day
          Thanksgiving Day
          Christmas Day

          But watch for the Blue Laws, which were just revised in July (these allow stores to be open, but require special permits for certain days). I'll post below to explain them in greater detail.

          5.) The stores may not require an employee work on Sunday, and can not terminate someone solely for his/her refusal to do so (nor can they reduce your hours your pay, or impoes any other penalty). Yes, they can make you work on your day off, so long as they pay you for it, and so long as they give you at least 24 consecutive hours of rest in every 7 consecutive days. You may also have "on-call" time and reporting pay issues here, too.

          6.) Yes, but if you travel between stores on company time, they must pay your travel time.

          7.) MA employees who work more than 6 hours in a day must be allowed at least 30 mins. unpaid time for a meal. An AG's Advisory Opinion indicates that this time must be paid if the employee's movement is restricted or s/he has to do other duties during the break period.

          8.) If he was promised a pay raise and didn't get it, then depending upon the "promise", you may have a wage claim. Is there a written policy regarding post-training period raises?

          Sorry much of this is duplicative of Cathy's post, but I had begun drafting my response prior to seeing her reply. Hope it helps you think through some of the issues.

          Phil
          Last edited by CompensationCounsel; 12-30-2005, 09:50 AM.
          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


          • #6
            Phil: when did Thanksgiving and Christmas get added? They weren't originally.
            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


            • #7
              MGL c.4, sec.7 as follows:

              "Legal holiday'' shall include January first, July fourth, November eleventh, and Christmas Day, or the day following when any of said days occurs on Sunday, and the third Monday in January, the third Monday in February, the third Monday in April, the last Monday in May, the first Monday in September, the second Monday in October, and Thanksgiving Day. "Legal holiday'' shall also include, with respect to Suffolk county only, March seventeenth and June seventeenth, or the day following when said days occur on Sunday; provided, however, that the words "legal holiday'' as used in section forty-five of chapter one hundred and forty-nine shall not include March seventeenth, or the day following when said day occurs on Sunday.

              One other statute that you might find helpful here:
              c. 136, sec. 16 Retail stores and shops; Sunday and holiday opening

              All stores and shops which sell goods at retail may be open at any time on Sundays and on Memorial Day, July Fourth and Labor Day. The performance of labor, business and work directly connected to retail sales on said days shall also be allowed. Stores and shops allowed to open under this section may sell on said days all types of goods and foodstuffs which may lawfully be offered for sale in the Commonwealth other than alcoholic beverages. To the extent the provisions of this section are inconsistent with the provisions of section five of this chapter or of any other general or special law, the provisions of this section shall control.

              The provisions of law inserted into clause (50) of section six of this chapter by chapter five hundred and fifty-six of the Acts of 1982 pertaining to voluntariness of work and time and one half payments shall apply to any such work performed on said days. The terms ""Memorial Day,'' ""July Fourth'' and ""Labor Day'' shall mean the legal holidays on which said days are celebrated in accordance with clause eighteen of section seven of chapter four of the General Laws.
              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


              • #8
                Originally only the six holidays I posted were included in the time and a half regulation. I'm not questioning your post; only asking whether or not you know when it was expanded to include the additional days.
                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


                • #9
                  Sorry, I don't know the date they were added. But I'll let you know as soon as I get the chance to do a legislative history search.
                  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


                  • #10
                    Thanks, Phil. I don't suppose it's really all that important so don't break your neck over it, but I'd be interested in knowing how long I've been giving out slightly incorrect information because I missed an update.
                    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


                    • #11
                      Cathy, I don't have an answer to your question yet, but I need to be clear on one thing we haven't discussed, but certainly apply to retail stores: the State Blue Laws.

                      On 7/21/05, the DOS revised the Blue Laws (following the 1994 law change to MGL c.136, sec.6).

                      If a retail or non-retail business falls within one of the exemptions in Chapter 136, it may operate on holidays. However, if the non-retail business is a factory or mill, employees may not be required to work on legal holidays pursuant to M.G.L. 149, ยง 45 unless the work is "absolutely necessary and can be legally performed on Sunday."

                      The following rules apply:

                      A. RETAIL ESTABLISHMENTS

                      Unrestricted Holidays:
                      Work may be performed without a permit. Time and one-half pay and voluntariness of employment requirements do not apply.

                      Martin Luther King Day
                      President's Day
                      Evacuation Day
                      Patriots' Day
                      Bunker Hill Day

                      Partially Restricted Holidays:
                      Work may be performed without a permit. Time and one-half pay and voluntariness of employment requirements do apply.

                      New Year's Day
                      Memorial Day
                      Independence Day
                      Labor Day
                      Columbus Day after 12:00 noon
                      Veterans' Day after 1:00 p.m.

                      Restricted Holidays:
                      Work may be performed only with a local police permit and approval by the State's Division of Occupational Safety.

                      Columbus Day before 12:00 noon*
                      Veterans' Day before 1:00 p.m.*
                      Thanksgiving Day
                      Christmas Day

                      * If a permit is granted, time and one-half pay and voluntariness of employment requirements do apply.


                      If you need more detail, you can of check the DOS site at
                      http://www.mass.gov/dos/bluelaw/

                      or you can post again here, and I'll do my best to answer.

                      Have a happy holiday,

                      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
                        Actually, you did answer my question. Thanks, Phil, I appreciate it.
                        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


                        • #13
                          Sure.

                          That was a crazy week. Can you believe that some MA employers chose holiday time to deliver their news? Very rough.

                          We were buried, so I'm sorry for any delays. I'll look around and clean up where I can on any MA issues. Although I think I've caught most of it.

                          Phil
                          Last edited by CompensationCounsel; 01-02-2006, 07:48 AM.
                          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


                          • #14
                            I sure can believe it. My part time job (that covers the gap when contracts don't immediately follow one another) made the announcement last Friday that they've been sold. Seems they've only known about it since July, but chose the week between Christmas and New Years to tell us about it. Naturally the new owner is telling us that no personnel changes are anticipated. I've heard that one before....

                            I think most of the MA issues are cleared up but if I see any outstanding ones I'll point them at you.
                            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


                            • #15
                              Hi sorry it took me so long to get back....

                              First off he doesn't get paid time and half on Sundays. It is a HUGE corporation with many stores... there isn't more than 7 employees for the particular branch he is working in, but the company who owns it and many others in the area employ thousands of people... that counts right?

                              Second he told them 2 months before Christmas that he needed Christmas day off to be with our 4 yr old and they agreed then later took it back and told him he HAD to come in or risk losing his job.

                              Third it is in the employee handbook as well as them telling him verbally that all employee will receive a review and raise after 60 days of employment. It has been 2 1/2 months since he started and no raise.

                              This is a HUGE issue for us because he earns such a low income and I won't be able to work till I get surgury in over 6 months... so I obviously can't make up the difference.

                              Could you possible give me a link to the actual laws or quote them for me pertaining to the time and half on Sundays law? And could you give me any suggestions on what we can do regarding all of this?

                              Thanks a lot guys,

                              Lisa
                              Last edited by nightwolfe; 01-02-2006, 03:26 PM.

                              Comment

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