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Hiring

Advertising

What are the requirements relating to advertising open positions?

All advertisements must be non-discriminatory on the basis of race, age, gender and other protected categories. Advertisements must specifically note whether applicants are sought to replace workers engaged in a labor dispute.

Background checks

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

(a) Criminal records and arrests

An employer cannot make a criminal records inquiry in an initial application for employment. Thereafter, the employer may make inquiries regarding conviction of felonies (for any time period) or misdemeanors (within five years). An employer must conduct criminal record searches in a non-discriminatory manner. Employers cannot pick and choose which candidates to perform criminal records checks on. Further, any criminal records checks which utilize state criminal history records must comply with state law.

(b) Medical history

Most pre-employment medical inquiries and examinations are barred by the state’s Disability Discrimination Law. An employer can condition employment on a post-offer medical exam.

(c) Drug screening

Pre-employment drug tests are permissible if conducted with adequate procedural and privacy protections and in a non-discriminatory manner. Post-employment, reasonable suspicion and post-accident testing is also permitted. Random testing is permitted for employees in “safety sensitive” positions, and for those subject to random testing under federal law.

(d) Credit checks

Massachusetts has its own version of the federal Fair Credit Reporting Act (FCRA). In most situations, compliance with the FCRA will equal compliance with state law.

(e) Immigration status

No inquiries are stipulated beyond those allowed or required by federal law.

(f) Social media

There are no statutory restrictions. Legislation has been introduced to prohibit employers from requesting applicants’ social media passwords, but it is yet to be enacted.

(g) Other

Massachusetts prohibits employers from requesting or requiring applicants and employees to take lie detector tests. A notice to this effect must be included on employment applications. Further, effective as of July 1 2018 as part of the pay equity law, employers will not be permitted to ask the wage and salary history of job applicants.

Wage and hour

Pay

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

Mass. G.L. c. 149 and 151.

What is the minimum hourly wage?

$11 as of January 1 2017 ($3.75 for tipped employees).

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

Employees must be paid all wages owed (including accrued vacation pay) on termination. Deductions from pay are allowed only if required by law or if authorized by the employee. These provisions are generally not waivable by employees.

Hours and overtime

What are the requirements for meal and rest breaks?

Employees who work six hours or more are entitled to a 30-minute (unpaid) meal break. Employees are allowed to voluntarily waive the meal break. This waiver should be in writing.

What are the maximum hour rules?

Most employers are entitled to one day of rest for every seven days. Other than that, there are no statutory restrictions, except for minors. There are numerous restrictions on the hours of work and jobs in which minors are allowed to be employed. These are more restrictive for those aged 16 or below, and slightly less restrictive for those between the age of 16 and 18.

How should overtime be calculated?

Overtime should be calculated at time and a half of the employee’s regular rate. In most regards, Massachusetts law is consistent with federal law regarding how the regular rate is calculated, and what constitutes “hours worked” for overtime purposes. Like the federal Fair Labor Standards Act, overtime is usually required only after 40 hours worked per week. However, retail employees must be paid time and a half for work on Sundays.

What exemptions are there from overtime?

For the most part, Massachusetts follows the federal exemptions for white collar employees (e.g., executive, professional, and administrative employees). There are 20 additional exemptions under state law, which are set forth at Mass. G.L. c. 151, Section 1A.

Record keeping

What payroll and payment records must be maintained?

Massachusetts requirements are generally consistent with federal requirements. Pay records must reflect hours worked, pay, basis for calculation, and deductions. Records must be maintained for a minimum of three years.

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