Lunch breaks – and other breaks – are a normal part of most employees’ work days. Under Massachusetts law, M.G.L. c. 149, s. 100, employers must provide employees with a thirty-minute meal break after working for six consecutive hours. Many employers provide longer breaks, such as one hour for lunch. When an employer provides an employee with any break that is longer than 20 minutes, it may be paid or unpaid.

However, the break must be paid if, during the break, the employee performs work, is assigned work duties, or is required to remain at the job site. Many employers give employees breaks by using a shortcut. Rather than have employees clock in and clock out for breaks, they automatically deduct time from employees’ hours each day. These “auto deduct” or “auto deduction” policies often result in employees going unpaid for work they perform. The Massachusetts wage regulations at 454 CMR 27.02 define compensable “working time” as follows:

Working Time. Includes all time during which an employee is required to be on the employer’s premises or to be on duty, or to be at the prescribed work site or at any other location, and any time worked before or after the end of the normal shift to complete the work. Working time does not include meal times during which an employee is relieved of all work-related duties.

This means that, when employees work through lunch, are assigned duties during their break periods (such as answering a phone or radio), or are prohibited from leaving the job site during the meal break, they must be paid wages for that time. Yet, because many employers utilize inflexible, automatic time deduction policies that do not take into account work during lunch breaks, these wages often go unpaid.

Auto deduct policies also regularly collide with employers’ recordkeeping duties. Massachusetts law, as set forth at 454 CMR 27.07(2), requires that the employer – not the employee – keep a true and accurate record of all time worked:

For each employee, the employer shall keep a true and accurate record of the employee’s name, complete address, social security number, occupation, amount paid each pay period, hours worked each day, rate of pay, vacation pay, any deductions made from wages, any fees or amounts charged by the employer to the employee, [and] dates worked each week …

An employer’s obligation to keep a record of all hours worked means that the employer must keep track of hours worked during lunch. If the employer knows – or would know through reasonable inquiry – that an employee is working during a break, it must pay the employee wages for that time. Because it is the employer’s duty to accurately record time, the employer cannot avoid paying wages by blaming the employee for failing to report the time worked.

If you perform work, are assigned duties, or are prohibited from leaving your job site during your lunch break, feel free to contact us to confidentially discuss your situation and your rights with one of our employment law attorneys.

The Massachusetts Appeals Court recently issued an important overtime ruling involving off-the-clock work. What happens when an employee works overtime but the employer claims they didn’t know about it? In the case of Vitali v. Reit Management, the Appeals Court weighed this issue and came out on the employee’s side.

In the case, the employee worked in a busy office and was told to take an hour lunch break each day, but because of the busyness of the office, she and her co-workers often worked through lunch. The employer had a way for the employees to report that they worked through lunch and to get paid for it, but it was not frequently utilized.

The Court began by noting that the Massachusetts Overtime law is “essentially identical” to the federal Fair Labor Standards Act and is interpreted in harmony with federal law when possible. The court, citing from federal cases, made several useful points about an employer’s duty to pay for all work.

Employer Knowledge of Off-the-Clock Work

The key is whether an employer (1) knew of the off-the-clock work or (2) could have known of it by taking reasonable steps. In either of these scenarios, the employee will have a valid claim.

The court explained the employer’s knowledge requirement:

“The knowledge inquiry requires an assessment of what the employer knew or should have known, and is to be made in view of the employer’s duty . . . to inquire into the conditions prevailing in his business. In other words in reviewing the extent of an employer’s awareness, a court need only inquire whether the circumstances . . . were such that the employer either had knowledge [of overtime hours being worked] or else had the opportunity through reasonable diligence to acquire knowledge.”

What about situations in which overtime is prohibited or prior permission is required?

As the court put it:

“Thus, even where the employer has expressly prohibited overtime work, if it had reason to believe that such work was being done, the employer cannot sit back and accept the benefits without compensating for them.”

However, work done in secret that an employer could not know about is not compensable. The court pointed out that there would be no liability for pay when “an employer has no knowledge that an employee is engaging in overtime work and that employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work.”

What about when there is a system to re-capture and report missed breaks?

The court responded that such a system was not always enough. “To begin with, [t]he FLSA makes clear that employers, not employees, bear the ultimate responsibility for ensuring that employee time sheets are an accurate record of all hours worked by employees. Moreover, an employer’s duty under the FLSA to maintain accurate records of its employees’ hours is non-delegable.”

This is a key point. Employers often create busy conditions that make taking true breaks difficult. When an employee routinely works through breaks, they often do not want to complain every day for fear of being seen as a troublemaker. The law addresses this situation by keeping the duty to monitor and control the work site where it belongs, with the employer. An employer must do all it can not to obtain free work via an auto-deduct policy. An employer cannot simply tell employees to take a daily hour break when it has reason to know that employees are not always taking their breaks. With time-keeping systems this is easily accomplished, but without one it is often wishful thinking that all employees are taking breaks each day. If this is happening in your workplace, feel free to contact us for a confidential case assessment.

When tasked with interpreting the Massachusetts Wage Act, the Supreme Judicial Court of Massachusetts (“SJC”) has consistently construed the words of the statute to fit within the broader purpose of the law. This method has, in effect, steadily expanded liability of employers. With its decision in Giovani Depianti v. Jan-Pro Franchising International Inc. in the summer 2013, the Court ruled that employers could be liable for misclassification of workers as independent contractors, even if there was no direct contractual relationship between the employer and the so-called independent contractor.

Defendant Jan-Pro Inc. is a cleaning and maintenance company in Massachusetts that sold rights to use the Jan-Pro brand to “regional master franchises.” These regional masters would then, in turn, sell those rights to “unit franchises.” The Jan-Pro unit franchises provided the actual cleaning services to customers and were given customer accounts through the regional masters. They were, however, able to solicit their own business. Each of these customer accounts became the property of the regional master franchises once obtained. During the final steps, regional masters received payments for services from the customers directly. They would then deduct certain fees, return the remaining balance to the unit franchises, and send royalty payments back to Jan-Pro Inc.

The plaintiff in the case contracted with a regional master franchisee within the Jan-Pro structure. In 2008, he filed a lawsuit against Jan-Pro that sought to hold Jan-Pro Inc. directly liable for misclassification under the Massachusetts Wage Act. The lawsuit stated that Jan-Pro was liable for misclassifying the plaintiff as a franchisee, or independent contractor, rather than an employee. Jan-Pro was able to do so, the plaintiff alleged, by imposing a multi-tiered franchise structure whereby Jan-Pro maintained control over its franchises, but from a distance.

Defendant Jan-Pro Inc. responded that, given the language of the statute, it could not be held liable. Jan-Pro Inc. argued that the independent contractor provision of the law states that an independent contractor “must be free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact.” Jan-Pro contended that the very language of the statute requires a contractual relationship between the plaintiff and defendant as a prerequisite for liability. Since there was no contract between Jan-Pro itself and the plaintiff, it argued it was not liable for misclassification.

The SJC faced this question: Was it necessary for there to be a contract between plaintiff and defendant in order to hold an employer liable for misclassification under the Wage Act? After reflecting on the actual intent of the legislature in drafting the Wage Act, the Court ruled in the plaintiff’s favor. The Court stated that the overall purpose of the law was to protect workers by classifying them as employees, and to grant them the benefits and rights of employment. Under the independent contractor provision, a worker is presumed to be an employee unless the employer is able to rebut this presumption by satisfying three criteria, all of which indicate the worker is an independent contractor.

The Court noted that if a contractual relationship had to exist before an employer could be liable for employee misclassification under the Wage Act, employers in the future would find crafty ways around liability, playing with corporate structures and other devices obscuring the truth of the relationships. Essentially, Jan-Pro’s imposition of an intermediary between it and the workers would allow it to escape its obligations as an employer to pay lawful wages. This situation, the Court stated, would frustrate the overall purpose of the law. Therefore, employers like Jan-Pro Inc. can be sued directly for misclassification under the Wage Act, even if no employment contract is in place.

In many industries, workers are expected to be “on call” for some or all of their work time. During these periods, workers must be ready and able to begin work, usually at a moment’s notice, upon receiving a call or page from their employer or a customer. This practice has become increasingly common with the widespread availability of mobile technology, and employers’ willingness to allow for more flexible work arrangements. These periods of on-call time occupy a gray area between paid work time and a worker’s uncompensated non-working time. This leads many workers to wonder: Should I be paid for the time I spend on call for my employer?

The answer to this increasingly common question is “it depends.” Whether a worker must be paid for on-call time is determined by a number of factors, which must be applied on a case-by-case basis to each individual employment situation. Generally, if a worker is not allowed to control and use the time for her own benefit or enjoyment, then the time will be considered work time, which must be compensated. On the other hand, if the worker has control over how she spends that time, and may use it for her own benefit, then the time will not be counted as payable time.

In applying this general rule, courts have applied the following factors: the frequency of calls received, the expected response time, the length of the time worked when called, any restrictions on how far an employee may travel away from home, and the ability of the employee to switch shifts. Although this multi-factor analysis can be frustrating for both employers and employees who are looking for a bright-line rule for when on-call time is compensable, each individual set of circumstances must be assessed on a case-by-case basis.

Examples from past cases interpreting the Federal Fair Labor Standards Act (the “FLSA”) are instructive. In Renfro v. City of Emporia, the Eleventh Circuit Court of Appeals determined that on-call time for firefighters who were required to wear pagers and respond to calls within 20 minutes, while receiving as many as 13 calls in a 24-hour period, was “work” for the purposes of the FLSA, and therefore required compensation. In Bright v. Houston Nw. Med. Ctr. Survivor, Inc., however, medical equipment technicians who were required to carry a beeper, remain sober, and stay within 20 minutes of their workplace were judged by the Fifth Circuit to be able to use their on-call time “effectively for [their] own personal purposes”. These workers’ on-call time did not therefore require compensation under federal law. The courts in on-call compensation cases like these draw fine distinctions based on the individual facts in each case.

There have been very few analogous court decisions dealing with on-call time under Massachusetts law. The relevant Massachusetts regulation, however, 455 Code Mass. Regs. § 2.03, directly addresses the issue of on-call time. It reads: “An on-call employee who is not required to be at the work site, and who is effectively free to use his or her time for his or her own purpose, is not working while on call.” The few cases and agency determinations that have defined this standard have tracked federal decisions for when a worker is on call, and identified the same determining factors for compensability.

Another common issue for on-call workers is the question of how much they should be paid in the event that they are called in to work while on call. Previously, on-call workers in Massachusetts would be entitled to a minimum of three hours pay when they were called in. That regulation, however, has been rescinded. In the absence of a regulation or binding case law directly on point, it appears that on-call workers are entitled only to be paid for “working time”, which is defined in 455 Code Mass. Regs. § 2.01 as “…all time during which an employee is required to be on the employer’s premises or to be on duty, or to be at the prescribed work site, and any time worked before or beyond the end of the normal shift to complete the work.” Thus, for on-call workers, unless their contract says otherwise, pay is determined only to include time spent working to the employer’s benefit, at their regular hourly rate.

Where does all this leave workers who wonder if their on-call time should be compensated under the law? The first step is an objective determination of whether the on-call time is spent primarily for the benefit of the employer or the employee. This requires careful consideration of the factors discussed above with the facts of your individual case. We have significant experience evaluating these cases and resolving on-call cases under the FLSA. For a free evaluation of your individual case, contact us by phone at (617) 338-9400 or by email to [email protected].