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Federal and State Overtime Law

Overtime Rules Under Federal and Massachusetts Overtime Law

The federal Fair Labor Standards Act "FLSA") and Massachusetts law contain similar requirements for overtime premium pay, and also imposes a minimum hourly wage for most workers.  There are important differences, however, that you should consider when thinking about overtime and minimum wage issues.  If an employee is covered by Massachusetts minimum wage or overtime laws and not under the FLSA, they can still recover the state remedies for violations of those laws.  If they are exempt under Massachusetts law but non-exempt under the FLSA, they can still recover damages, but (i) the minimum wage required is significantly lower under federal law; and (ii) the federal remedies for employees are not as extensive as the remedies for violation of Massachusetts wage and hour laws.

Overtime Law Violations: State vs. Federal Remedies

Under the FLSA, you can recover up to two years of unpaid overtime, or three if the violation is found to be "willful" on the part of the employer.  The court may double your damages as a penalty for the violation, and if you prevail, the employer will have to pay your attorneys' fees.

Violation of the Massachusetts overtime law carries stiffer penalties.  First, you can recover three years of unpaid overtime without a finding of willfulness.  Second, all damages are subject to tripling, not doubling.  Like federal law, if you win your claim the employer will have to pay your attorneys' fees.

For most workers, they are either exempt or non-exempt under either federal or state law, so a Massachusetts employee will generally bring both federal and state claims.  If you are exempt under federal law but not Massachusetts law, it makes little practical difference to you as a plaintiff because you can recover under the more generous (Massachusetts) remedies.

There are, however, some cases where a worker is exempt from overtime under Massachusetts law but not federal.  Examples include restaurant workers, hotel workers, and employees of gasoline stations (see comparison chart for details, and here for further description).  In those cases, a recent decision by the Massachusetts Supreme Judicial Court has clarified that you can bring FLSA claims but are limited to the federal remedies and cannot take advantage of Massachusetts' additional compensation.

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Minimum Wage Laws: State vs. Federal Exemptions

​Both the FLSA and Massachusetts law also exempt certain workers from the minimum hourly wage requirement.  Again, if you are exempt under federal law but non-exempt under Massachusetts law, as an employee it makes little difference because the Massachusetts minimum wage is higher.

If, however, you are exempt under Massachusetts law but non-exempt under the FLSA, it does make a difference, as currently the federal minimum wage is $7.25 an hour, compared to $14.50 per hour in 2022 and $15.00 hour in 2023 and after in Massachusetts.

​There is really only one example of a type of job that could be exempt from Massachusetts minimum wage requirements and not from the FLSA minimum wage.  That category is "professional services," which is cited in the Massachusetts statute but not explained in any caselaw interpreting that term.

Massachusetts Minimum Wage and "Professional Services"

The Massachusetts Minimum Wage Law applies to any worker in an "occupation."  "Occupation" is defined in the statute as:

"an industry, trade or business or branch thereof or class of work therein, whether operated for profit or otherwise, and any other class of work in which persons are gainfully employed, but shall not include professional service, agricultural and farm work, work by persons being rehabilitated or trained under rehabilitation or training programs in charitable, educational or religious institutions, work by seasonal camp counselors and counselor trainees or work by members of religious orders.  Occupation shall also not include outside sales work regularly performed by outside salesmen who regularly sell a product or products away from their employer's place of business and who do not make daily reports or visits to the office or plant of their employer."

M.G.L. c. 151, section 2 (emphasis added).

All of the other exceptions in this paragraph (agricultural and farm work, seasonal camp workers, outside sales representatives, for example) are also exempted from the federal minimum wage.

"Professional service" has not been clarified in case law interpreting the minimum wage law, but would likely be interpreted similarly to the professional exemption to overtime pay requirements.  The overtime analysis requires that:
  • The employee’s primary duty must be the performance of work requiring advanced knowledge. This is defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment.
  • The advanced knowledge must be in a field of science or learning.
  • The advanced knowledge must be usually acquired by a prolonged course of specialized intellectual instruction.
In most cases, individuals who could qualify as "professional" will not be in a position to invoke the minimum wage laws, as they will already be compensated well above the minimum rate.  This can come up, however, in a start-up or other situation where a professional employee might agree to work without pay for a period of time while the business is not generating revenue, or to work in exchange for some other benefit, like equity.  In that case, if the business is not successful or the relationship otherwise falls apart, whether the employee can recover could well depend on the interpretation of "professional services" as applied to the work they did for the business.

How We Can Help

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10.0Emily E. Smith-Lee
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We can help you navigate these issues and get clarity on your rights and obligations as an employer or an employee.  Read more about some example overtime law cases we have handled.  You can use the button below to schedule a call back from a member of our team, or give us a call at  781-784-2322.
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  • Home
  • Employment Law
    • Guide To Employment Law Content
    • Advice for Employers
    • Employment Contracts in Massachusetts
    • Discrimination in the Workplace
    • Employment Termination >
      • Massachusetts Paid Family Leave
      • Severance Pay
      • Unemployment in Massachusetts
      • Should I Accept a Severance?
    • Sexual Harassment at Work >
      • Sexual Harassment in a Small Business
      • Sexual Harassment and Non Disclosure Agreements
      • Sexual Harassment and Remote Work
    • Wage and Hour Laws >
      • Overtime Law >
        • Overtime Exemptions
        • Employee Travel Time
        • Federal or State Overtime Law
      • Massachusetts Wage Act >
        • Payment of Commissions
        • Wage Deductions
        • Late Payment of Wages
        • Paid Time Off
    • Independent Contractor Law >
      • Independent Contractor Test
      • Working As Independent Contractor
      • Hiring Independent Contractors in Massachusetts
      • Is My Independent Contractor Status Legal?
    • Non Compete Agreements >
      • Are non competes enforceable
      • Massachusetts Non Compete Act
      • Pre 2018 Massachusetts Non Competes
      • Can I Avoid My Non Compete?
    • Do I Have a Case?
  • Estate Planning
    • Guide To Estate Planning Content
    • Legacy Protection
    • Why You Need an Estate Plan
    • Why You Don't Have an Estate Plan
    • Estate Planning Documents >
      • Children with Special Needs
    • Planning for Assisted Living
    • Probate Process
  • Business Law
    • Guide To Business Law Content
    • Small Business Law
    • Business Contract Basics
    • Civil Suit Defense
    • Legal Issues for Start Ups
    • Trademark Basics
    • How to Incorporate
    • Sale of Business
  • About
    • Reviews
    • Slnlaw Offices
    • slnlaw core values
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    • Emily Smith-Lee >
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    • Jenna Ordway
    • Rebecca Rogers
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  • Legal FAQs
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