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April 12, 2018
Are Premium Pay Cases on the Rise in Massachusetts?

By Amelia J. Holstrom

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Massachusetts retail businesses are required to comply with the Massachusetts "Blue Laws" found at Mass. Gen. L. Ch. 136 § 6, which mandate that some employers provide premium pay on Sundays and certain holidays. Until recently, employees took claims for violations of the Blue Laws to the Massachusetts Attorney General's (AG) Office, which resulted in very few court cases on the issue.

That all changed in the last few months thanks to two important superior court cases. Read on for help in avoiding similar problems in your workplace.

Employees Can File Private Claims for Premium Pay

Under Massachusetts' Blue Laws, retail establishments that employ more than seven employees must pay nonexempt employees 1½ times their regular hourly rate for all work performed on Sundays and certain holidays. In Bassett v. Triton Technologies, four employees filed a class action lawsuit alleging that Triton Technologies, a retail establishment, violated the Massachusetts Wage Act and the Blue Laws by failing to pay them the premium rate for work performed on Sundays.

At an early stage of the litigation, Triton asked the court to dismiss the matter, claiming the employees could not file a lawsuit for failure to provide premium pay on Sundays under the Blue Laws. Instead, Triton argued that they had to pursue their claims through the AG's Office. The court, however, disagreed with Triton.

The court noted that while the Blue Laws do not allow employees to file court actions for failure to provide premium pay, the Wage Act expressly permits employees to file claims for failure to pay "earned wages." The court reasoned that the Wage Act, which provides that employees must be paid all "wages earned" on a weekly or biweekly basis, includes the premium pay wages outlined in the Blue Laws.

According to the court, since the employees alleged that Triton failed to provide premium pay under the Blue Laws, they had a viable Wage Act claim because wages were not paid when they were earned. Bassett v. Triton Technologies(Mass. Sup. Ct., 2017).

The decision is important for retailers that operate on Sundays. Based on this case, it is clear that retail employers that fail to provide premium pay on Sundays and holidays when required to do so under the Blue Laws can be sued under the Wage Act, which permits successful plaintiffs to recover triple damages, attorneys' fees, and costs. Not providing premium pay can be an expensive mistake, especially if it affects multiple employees.

Another Case Is Dismissed

Bassett, another group of employees filed a lawsuit in superior court alleging that National Amusements, a movie theater, violated the Wage Act by failing to pay them premium pay on Sundays and holidays. Like Triton, National Amusements asked the court to dismiss the failure to provide premium pay claim at an early stage. The court agreed with National Amusements.

The court found that the Blue Laws, the statute that required Triton to provide premium pay on Sundays and certain holidays, expressly did not apply to movie theaters. The court noted that the operation of movie theaters on Sundays and holidays is permitted by other statutes that do not require premium pay for work on those days. Accordingly, because the employees were not entitled to premium pay, there could be no violation of the Wage Act. Smith-Berry v. National Amusements (Mass. Sup. Ct., 2017).

Bottom Line

It is very likely that employee-side attorneys will begin filing more lawsuits alleging failure to pay premium pay under the Wage Act, which entitles a prevailing plaintiff to mandatory triple damages, attorneys' fees, and costs.

If awarded, those damages are imposed after an employer has already paid a significant amount of legal fees to defend the case. It is crucial that employers that operate on Sundays and holidays ensure that they are properly paying employees. Otherwise, they could find themselves on the end of a costly lawsuit.

Amelia J. Holstrom is an associate at the firm of Skoler, Abbott & Presser, P.C., and editor of Massachusetts Employment Law Letter. She can be reached at 413-737-4753 or AHolstrom@skoler-abbott.com.

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