Overtime Archives - Ortiz & Moeslinger, P.C.

Women in Construction

September 23, 2025/in Wage/by competenow

Part I – Common Claims

Construction is one of the largest industries in the country. Jobs in the construction industry can offer a viable pathway to financial security, particularly for workers without a four-year undergraduate degree. My grandfather, who left high school at an early age, worked his entire life in the construction industry. By securing a union job in construction he was able to support his wife and three kids, including sending my mother to college (she was part of the first freshman class of women accepted at her school). Securing a job in construction can provide a worker—and their family—with life-changing opportunities.

But construction remains a male-dominated field. According to an August 2025 report from the Institute for Women’s Policy Research (IWPR), even though the number of women working in construction nationally has grown in the past decade, “tradeswomen [still make up] only 4.3 percent of all construction trade workers.” The same holds true in Massachusetts. The 2025 Massachusetts Workforce Data Report issued by the Massachusetts Executive Office of Labor & Workforce Development, confirms that women in Massachusetts remain under-represented in the state’s construction industry and that work in construction is a “gendered” job.

Women face several barriers to entering and remaining in the profession. Discrimination and harassment are two of the barriers: women in the industry report worksite hostility and harassment as reasons they consider leaving the profession, and the U.S. Equal Employment Opportunity Commission (EEOC) has identified combatting gender-based discrimination in recruitment and hiring, as one of its Strategic Enforcement Priorities for 2024-2028.

And while the construction industry offers many opportunities for financial stability, it remains plagued with wage and hour violations. The Massachusetts Attorney General Office’s 2025 Labor Day Report states that the construction industry had the second-highest Fair Labor Division enforcement amounts for Fiscal Year 2025. According to the report, the Attorney General Office’s Fair Labor Division issued approximately 300 citations against employers in the construction industry and the office assessed nearly $3.1 million in penalties and restitution against these employers.

Our office regularly represents workers in the construction industry. Through private enforcement of Massachusetts wage and hour and anti-discrimination laws, we seek to contribute to the efforts of government agencies and organizations working to improve opportunities and conditions for women in construction.

In addition to the unpaid wage and overtime cases we handle within the construction industry, some other common claims that our office assesses when working with women in the construction industry include:

Discrimination: An employer cannot make an employment decision based on a candidate or employee’s gender. For example, it is unlawful for an employer to refuse to hire a candidate because she is a woman, to assign fewer hours to an employee because she is a woman or to fail to promote an employee because she is a woman.

Harassment: Anti-discrimination laws also protect employees from certain sex-based harassment. An example of harassment based on sex drawn from the EEOC’s Guidance on Harassment in the Workplace would be “a construction worker on a road crew, [being] subjected to sex-based epithets and other demeaning sex-based language by her supervisor, such as ‘sandwich-maker’ and ‘baby[,]’ [and] disparag[ing remarks from her supervisor about] women’s participation in the construction industry, for example by stating that road construction is ‘a man’s job.’” Sex-based harassment also includes sexual harassment, and can include pregnancy-based harassment (there are also more specific protections in place for pregnant workers, under state and federal law).

Independent Contractor Misclassification: Massachusetts follows a strict employee status test, commonly known as the “ABC test,” which determines whether the worker has a right to employee wage and hour protections such as the right to timely payment of earned wages, the right to minimum wages, the right to overtime, and the right travel expense reimbursement for intraday travel. When an employer misclassifies a worker as an independent contractor (when that worker should be an employee according to the “ABC test”), we refer to it as independent contractor misclassification. Construction work is a commonly misclassified job. According to one recent study, “a typical construction worker, [classified] as an independent contractor, would lose as much as $19,526 per year in income and job benefits compared with what they would have earned as an employee.” Individualized assessment is needed to understand what losses might have occurred due to misclassification.

Prevailing Wage: Prevailing wage refers to mandated hourly rates that construction workers must receive for working on certain public projects. You can read more about our firm’s work on prevailing wage cases, and its connection to independent contractor misclassification.

Retaliation: Too often, workers are afraid to report discrimination, harassment, or wage and hour violations due to fear of retaliation. Anti-discrimination laws forbid employers from retaliating against employees for engaging in “protected conduct,” which refers to conduct that opposes the unlawful discrimination (for example, reporting the unlawful discrimination to HR). Massachusetts wage law also forbids employers from retaliating against employees for asserting their statutory wage and hour rights. M.G.L. c. 149, § 148A (“No employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter.”). Retaliation can take the form of demotion, termination of employment, a reduction in hours, or rescheduling to an undesirable assignment, to name a few examples. These examples are drawn from the Massachusetts Attorney General’s Fair Labor Division’s Anti-Retaliation Protections under the Massachusetts Wage and Hour Laws FAQ Sheet.

Medical Leave: Those working in construction have medical leave rights just like other employees in Massachusetts. Here’s how PFML rights and claims work in Massachusetts.

This post only provides a summary of common employment law claims that arise for women in construction. To understand whether you may have a viable claim, feel free to reach out for an individualized assessment.

Author’s Note: The U.S. Equal Employment Opportunity Commission, the federal agency responsible for enforcing federal anti-discrimination employment laws, identified combatting discrimination in the construction industry as one of its strategic enforcement priorities for 2024-2028. Much of this post draws on its report, Building for the Future: Advancing Equal Employment Opportunity in the Construction Industry, U.S. Equal Employment Opportunity Commission, Report of Chair Charlotte A. Burrows, May 2023 [“Building for the Future”], which is no longer available online. Other resources from the EEOC on the topic include Knocking Down Walls: Discrimination and Harassment in Construction from the Commission’s May 17, 2022, hearing and “Combating Employment Discrimination in Construction.”

Care Coordinators May be Misclassified and Entitled to Overtime and Backpay

August 23, 2022/in Overtime, Wage/by competenow

Managed Care Organizations (MCO’s) often contract with State Health Departments to provide care for dually eligible Medicaid and Medicare patients pursuant to requirements established by the federal Centers for Medicare & Medicaid Services (CMS). Care coordinators provide case management services on behalf of the MCO to various populations.

Managed Care Organizations is a vague term for normal people but some examples include:

Aetna/CVS Health
Anthem, Inc.
Health Care Service Corporation (Blue Cross Blue Shield)
BMC HealthNet
CareSource
Centene
Cigna
Humana
Independence Health Group
Molina Health
Tufts Health
UnitedHealth Group
WellCare

If you work or have worked for an MCO in the past three (3) years and are/were:

Classified as exempt from overtime (you did not receive overtime pay and likely did not clock in and out for your schedule work shifts)
Paid on a salary basis (your paycheck is the same every pay period regardless of how many hours you worked) and
Routinely work over 40 hours per week but are not paid for hours worked over 40 per week

You may be entitled to overtime and backpay! Contrary to popular belief, employees paid on a salary basis are not automatically exempt from overtime – time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. Instead, everyone is entitled to overtime unless they fall within particular exemptions established by the FLSA.

Under the Section 13(a)(1) of the FLSA, certain categories of employees can be exempt from the overtime provisions of the FLSA, including employees working in a bona fide administrative, executive, or professional capacity.

An employee’s exempt status depends on whether their job duties qualify the employee for an exemption from federal overtime protections. Job Title is irrelevant for purposes of determining appropriate exemptions under the FLSA. For example – just because your job title is “administrator” does not mean you are administratively exempt. Instead, in order to be exempt under the administrative exemptions, an employer must show that the primary duties of the “administrator” are:

The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684 per week;
The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

The United States Department of Labor (“DOL”) Fact Sheet regarding the Administrative Exemption can be found here. In addition, the DOL issues opinion letters in order to address particular questions or gray areas regarding exemptions and compliance with the FLSA. While the DOL has not addressed the issue of care coordinators directly – it has found that other similar employees are not exempt employees.

For example, in DOL Opinion Letter FLSA2005-50 (November 4, 2005), the DOL found that “caseworkers” that “provide case management services” and who possessed a bachelor’s degree in social sciences were not administratively exempt employees under the FLSA. Similarly, in FLSA2007-7 (February 8, 2007), the DOL found that “case managers” were non-exempt whose primary duty “is to meet and to work with consumers to gather information, to assess each consumer’s needs, to assess the costs of care, to prepare a plan of care, and to identify and to implement services to meet the consumer’s needs.” The DOL emphasized that case managers “do not personally deliver or administer services to the consumers – but are response for planning and helping to obtain those services from third-party service providers.”

Care Coordinators often do similar work to the caseworkers and case managers the DOL has held are not exempt from overtime. If you have performed care coordination services in excess of forty hours per week without receiving overtime pay in the last three years, you may have a valuable claim for unpaid wages. We evaluate cases confidentially and at no cost to you. You can reach us by phone at (617) 338-9400, by email at [email protected], or by filling out the form below.

Overtime for Commission-Only Employees

May 9, 2019/in Overtime/by competenow

On May 8, 2019, the Massachusetts Supreme Judicial Court issued a major decision guaranteeing overtime to employees who are paid on a commission-only basis. The case is Sullivan v. Sleepy’s LLC. The SJC was considering whether salespeople who receive only commissions and a draw and no other salary are eligible for overtime and Sunday premium pay.

The case was brought by salespeople at Sleepy’s, a national chain of mattress stores, who were paid a daily draw of $125 and any sales commissions above that amount. They did not receive any extra pay for working overtime or on Sundays, and they argued that they were eligible for both.

Sleepy’s did not dispute that the overtime statute applied to its salespeople. Instead, it maintained that if you took the salespeople’s take-home pay (again, made up only of the draw and commissions) and divided it by the number of hours they worked, their effective hourly rate was at least the minimum wage for straight time and at least 1.5 times the minimum wage for overtime hours worked. The employees were, in effect, already receiving premium pay as part of their regular pay, according to Sleepy’s argument. The company relied on two opinion letters by the Massachusetts Department of Labor Standards from 2003 and 2009.

This reliance was misplaced, because as the SJC reminded us, the wage and hour laws do not allow employers to “retroactively reallocate and credit payments made to fulfill one set of wage obligations against separate and independent obligations.” In other words, an employer cannot use one wage obligation (to pay commissions) to cover another one (to pay overtime).

If employers could credit commission and draw payments against their overtime obligations, it would undermine the chief purposes of the overtime law: to discourage long work hours (so that employees can have more personal and family time), to encourage employers to hire more workers (to avoid paying the overtime premium), and to reward employees who do work overtime hours with extra pay. The interpretation of the law advocated by Sleepy’s – whereby it did not have to pay extra money when employees worked overtime – undercut each of these purposes, so the SJC rejected it.

The SJC’s decision in Sleepy’s will be very important for overtime cases. We have several cases on behalf of employees who are paid on a 100 percent commission basis, must work far more than 40 hours a week, but receive no additional compensation beyond commissions and draws. Those cases will be strengthened by this decision. Feel free to contact us if you work more than 40 hours in some workweeks but only get paid commission, no overtime — or if you work in retail, and work on Sundays, but get paid nothing beyond your commissions.

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Overtime Rights for Hotel Workers

October 28, 2018/in Overtime/by competenow

Under Massachusetts law, individuals employed “in a hotel, motel, motor court or like establishment” are exempt from overtime, meaning that no matter what the worker does and no matter how many hours they work, they are not entitled to overtime under state law. However, companies here in Massachusetts (and in all other states) must also comply with federal law. The federal Fair Labor Standards Act (“FLSA”) contains no exemption to overtime for hotel and motel workers, and such workers are entitled to overtime premium wages for all hours worked in excess of 40 in a week, provided that they or their employer is covered by the FLSA.

Not all businesses in the United States are covered by the federal FLSA. Some small, local businesses are outside the coverage of the federal law. What is the difference between those businesses that are covered by federal overtime law and those that are not? (In this article I am writing about hotels and motels, so I’ll use those terms, but this same rule applies for other businesses). First, when a hotel or motel has more than $500,000 in annual revenues and has at least two employees engaged in commerce, it is a so-called “enterprise” and all of its employees are entitled to overtime, unless otherwise exempt. If a hotel or motel has multiple has multiple locations, you must add together the revenues from each location to determine if the business as a whole sells more than $500,000 per year.

Even if the hotel or motel is very small and is not an “enterprise,” if an individual worker engages in interstate commerce or produces goods for interstate commerce, that individual will be entitled to overtime pay for work in excess of 40 per week.

If you are a hotel or motel worker not being paid overtime wages for overtime work, feel free to reach out to us, and we will evaluate your case at no charge.

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