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Hiring

Advertising
What are the requirements relating to advertising open positions?

If the offer of employment is contingent on the applicant’s purchase of an item, the employer must state in its job advertisement that employment is conditioned on the purchase. Penalties for violating this requirement may include a fine up to $2,000, imprisonment of up to three months, or both (Mass. Gen. Laws Ch. 149, §21).   

Background checks
What can employers do with regard to background checks and inquiries?

(a) Criminal records and arrests

Employers with six or more employees may not ask prospective employees about criminal histories on applications for employment, unless:

  • federal or state law creates a mandatory or presumptive disqualification for the position if the applicant has been convicted of a crime; or
  • federal or state law prohibits the employer from employing individuals in certain positions if the individual has been convicted of a certain offense (Mass. Gen. Laws Ch. 151B, §4(9.5)).      

(b) Medical history

Employers may not request disclosure of genetic information (Mass. Gen. Laws Ch. 151B, §4(19)(a). In addition, they may not ask whether an applicant:

  • has been voluntarily or involuntarily admitted to a mental healthcare facility if the applicant has been discharged from the facility and is no longer under treatment resulting from the admission (id. §4(9A)); or
  • is disabled or the nature or severity of any disability.

Any questions about history of absenteeism due to illness, major illnesses, and physical conditions are prohibited (id. §4 (16)). 

(c) Drug screening

Whether random or reasonable suspicion testing is allowed depends on whether the testing violates the Massachusetts Privacy Act (Mass. Gen. Laws Ch. 214 §1B). Courts will evaluate whether the employer’s business interest in conducting the test outweighs the employee’s right to privacy.  

(d) Credit checks

Employers may conduct a credit check on a prospective employee with advance written notice of the request. If the employer denies employment based on the credit report, it must provide written notice to the applicant within 10 business days of the decision, and include information regarding the applicant’s right to:

  • have a copy of the report;
  • have someone from the credit reporting agency interpret the report’s information;
  • dispute inaccurate information and the process for doing so; and
  • send a statement to the credit reporting  agency if the dispute is not resolved (Mass. Gen. Laws Ch. 93 §62).

(e) Immigration status

Massachusetts employers must use the Federal I-9 Form to verify work authorization in the United States.

(f) Social media

No laws govern the use of social media as part of the hiring process in Massachusetts.

Wage and hour

Pay
What are the main sources of wage and hour laws in your state?

Wage and hour laws are covered by Title 149 of the Massachusetts General Laws (Sections 56-105, 148, 148C, 150A, and 159C) and by Title 151 of the Massachusetts General Laws (Sections 1 and 1A).

What is the minimum hourly wage?

The minimum wage in Massachusetts is $9 per hour (Mass. Gen. Laws Ch. 151, §1).

The minimum wage in Massachusetts must be at least $0.10 higher than the effective minimum federal rate, which is currently $7.25 per hour (29 U.S.C. §206).

What are the rules applicable to final pay and deductions from wages?

Any employee leaving his or her employment voluntarily must be paid in full either on the following regular payday or, in the absence of a regular payday, on the following Saturday (Mass. Gen. Laws Ch. 149, §148).

Any employee discharged from employment must be paid in full on the day of his or her discharge or, in Boston, as soon as the laws requiring payrolls, bills, and accounts to be certified have been complied with (Mass. Gen. Laws Ch. 149, §148).

An employer may deduct from an employee’s paycheck for:

  • social security;
  • unemployment benefits;
  • vacation or health and welfare funds;
  • states taxes;
  • federal taxes;
  • dues check-off; and
  • credit unions (e.g., Mass. Gen. Laws Ch. 149, §150A).

It is a violation of the Massachusetts Wage Act for an employer to deduct from an employee’s pay for:

  • workers’ compensation;
  • other insurance procured for the benefit of the employer; and
  • franchise fees (Awuah v. Coverall, 952 N.E.2d. 890, 900-01 (Mass. 2011)).

Additional deductions may be taken—subject to weekly statutory limits and the employee’s consent—in the case of lodgings for seasonal employees and for employer-provided meals (454 Mass. Regs. Code §27.05(2)-(3)).

Hours and overtime
What are the requirements for meal and rest breaks?

Employers must provide employees who work at least six hours a day with a meal period that is at least 30 minutes long. The meal break may be unpaid, except if the employee voluntarily agrees to waive the meal break by working through the break or by remaining at the workplace at the employer’s request during the break (Mass. Gen. Laws Ch. 149, §100).

What are the maximum hour rules?

All non-exempt employees must be paid at last one-and-one-half times the regular rate of pay for hours worked in excess of 40 during the working week (Mass. Gen. Laws Ch. 151, §1A).

Minors under 16 years old may not work:

  • more than six days per week;
  • more than 48 hours per week;
  • more than eight hours per day or a period longer than nine consecutive hours; or
  • before 6:30am or after 7:00pm, except from July 1 to Labor Day, when they may work until 9:00pm.

Children 16 years old or older may work until 11:30pm on nights not preceding a school day (Mass. Gen. Laws Ch. 149, §65).

Minors under the age of 18 who are employed in any establishment or occupation named in Mass. Gen. Laws Ch. 149, §56 or §60 must not be employed for any of the following:

  • six days per week;
  • 48 hours per week;
  • nine hours per day; or
  • a period longer than 12 consecutive hours (Mass. Gen. Laws Ch. 149, §67).

How should overtime be calculated?

Overtime is calculated based on an employee’s regular hourly wage before any allowable deductions are made (e.g., 454 Mass. Regs. Code §27.05(6)). 

What exemptions are there from overtime?

The following employees are exempt from the state’s overtime requirements:

  • some janitors or caretakers of residential property;
  • golf caddies;
  • newsboys and newsgirls;
  • child performers;
  • bona fide executive or administrative or professional employees earning more than $80 per week;
  • outside salespersons and buyers;
  • learners, apprentices, and handicapped persons under special license;
  • fishermen and fisherwomen;
  • switchboard operators;
  • drivers and helpers on trucks subject to the Interstate Commerce Commission and the Motor Carrier Act of 1935 §204;
  • seasonal employees;
  • seafarers;
  • employees of employers regulated by 159A of the Massachusetts General Laws;
  • hotel employees and employees of like establishments;
  • gas station employees;
  • restaurant employees;
  • automobile garage employees;
  • hospital, nursing home, or infirmary employees;
  • summer camp employees;
  • farm and agriculture laborers; and
  • amusement park employees (151 M.G.L.A. §1A).

Record keeping
What payroll and payment records must be maintained?

Every employer must keep a record of each employee’s:

  • name;
  • complete address;
  • social security number; and
  • occupation.

In addition, the employer must keep a record of:

  • the amount paid each pay period to each employee;
  • hours worked each day by each employee;
  • the dates on which each employee worked each week; and
  • other information that the director of the Department of Labor Workforce Development or the state attorney general finds material and necessary (454 Mass. Regs. Code §27.07(2)).

Employers must keep such records on file for at least two years after the date of entry. Employers must maintain such records at one of the following locations:

  • the place where the employee is employed;
  • the office of the employer;
  • a bank or accountant; or
  • another central location in Massachusetts (454 Mass. Regs. Code §27.07(2)).

Pursuant to the Massachusetts Earned Sick Time Law, employers must also keep records of employees’ accrual and use of earned sick time for a three-year period.  (940 Mass. Regs. Code §33.09).