Seyfarth Synopsis: When Christmas and New Year’s Day fall on a Sunday, as they do this year, the holidays are legally observed on the following Monday in Massachusetts and Rhode Island. Employers in these states therefore must comply with special requirements imposed by the “Blue Laws” on both Sundays and each of the following Mondays.

The holiday season brings an extra surprise for Massachusetts and Rhode Island employers this year: two additional “holidays” that subject some businesses to closure, premium pay, and voluntariness of work requirements on December 26 and January 2. Employers doing business in these states may already be familiar with “Blue Laws” that impose unique requirements on work performed on Sundays and some holidays. When certain holidays, including Christmas and New Year’s Day, fall on a Sunday – as they do this year – those holidays legally are observed on the following Monday. For those two weeks, employers may need to comply with special rules on both the actual holiday (because it is a Sunday) and the following Monday (because it is a legal holiday). What does this mean for employers in those states? As explained below, the answer varies based on the state and nature of the employer’s business.

Massachusetts

Retail Employers

Retail employers in Massachusetts may not open on December 25, and retail employers operating on December 26, January 1, and January 2 must follow unique requirements regarding premium pay and voluntariness of work. Retail businesses must pay non-exempt employees who work on those days premium pay of least one and one-half times their regular rate of pay. This premium pay can be off set against any overtime worked in the same workweek. For example, if an employee works a total of 48 hours during the week of December 25, and 8 of those hours are on December 26, the employee is due a total of 40 hours of pay at his regular rate and 8 hours of pay at one and on-half times his regular rate.

In addition, retailers cannot require employees to work on those days, and refusal to work cannot be grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty.

Manufacturing Employers

The same law that applies to manufacturing employers on other Sundays applies on December 25 and January 1: they must fall within the exemption to the Blue Laws that allows manufacturers to operate when “processes which for technical reasons require continuous operations” are involved. Otherwise, manufacturers must obtain a permit from the local police to operate. Manufacturing employers that fall within the exemption or receive a permit are not required to provide premium pay, and employees can be required to work (though religious accommodation requirements must still be met).

Manufacturing businesses may lawfully operate on December 26 and January 2, but non-exempt employees cannot be required to work on those days. The very limited exception is that manufacturers can require employees to work if the manufacturing work being performed is both (1) absolutely necessary and (2) can lawfully be performed on Sunday, meaning that the work must “for technical reasons require continuous operation.” Given this restrictive standard, manufacturing employees generally cannot be required to work on holidays. Employees may, however, volunteer to work on legal holidays. Premium pay is not required.

Non-Retail, Non-Manufacturing Employers

Non-retail, non-manufacturing employers are prohibited from operating on December 25, December 26, and January 1 unless they are subject to one of the 55 exemptions in the Blue Laws or obtain a permit from the local police to operate. Non-retail employers that are allowed to operate by virtue of an exemption or permit are not required to provide premium pay, and the voluntariness requirement does not apply (again, religious accommodation requirements must still be met).

All non-retail businesses may open on January 2, regardless of whether they fall into one of the exemptions. The premium pay and voluntariness requirements do not apply.

Rhode Island

Retail Employers

Retail employers in Rhode Island may not open on December 25 unless they fall within one of the limited exemptions set forth in the statute. All retailers may operate on December 26, January 1, and January 2, but must follow requirements regarding premium pay, voluntariness of work, and minimum number of scheduled hours of work. Retail businesses must pay non-exempt employees who work on those days at least one and one-half times their regular rate of pay. As in Massachusetts, retail employers can offset premium pay against any overtime worked in the same workweek (see example above). In addition, work performed by an employee on those days must be voluntary, and refusal to work cannot be grounds for discharge or any other penalty. Finally, Rhode Island has a unique Blue Law requirement that applies only to retail employers: each employee who works on a holiday must be guaranteed a minimum of four hours employment.

Rhode Island has unique provisions that apply to certain retailers, including pharmacies, bakeries, florists, video rental establishments, and businesses that sell primarily food products and employ fewer than six employees per shift at a single location. Those businesses are allowed to operate on December 25 with a license obtained from the relevant city or town council (and are allowed to operate without a license on December 26, January 1, and January 2). The four-hour minimum employment requirement does not apply to these employers on any of these days. In addition, pharmacies and bakeries are not required are not required to pay premium pay or comply with the voluntariness requirements (though religious accommodation requirements must be met) on any of the four days, but businesses that fall within the other categories are required to follow these requirements.

Manufacturing Employers

Manufacturing employers in Rhode Island may not open on December 25, unless their operations for technical reasons require continuous operation. Manufacturers may operate on December 26, January 1, and January 2 but must follow the premium pay and voluntariness of work requirements explained above.

Any manufacturer which operates for seven continuous days per week is exempt from the voluntariness requirement and may require employees to work on those days, as long as religious accommodation requirements are met. However, the premium pay requirement still applies.

The Rhode Island Department of Labor takes the view that manufacturing employers cannot offset premium pay and overtime. For example, if an employer’s workweek runs from Sunday through Saturday, and a non-retail employee works a total of 48 hours during the week of December 25, with 8 of those hours worked on December 26, the employee is due a total of 32 hours of pay at his regular rate and 16 hours of pay at one and on-half times his regular rate (8 hours of holiday premium pay and 8 hours of overtime).

Non-Retail, Non-Manufacturing Employers

Non-retail, non-manufacturing employers in Rhode Island may not open on December 25, unless they fall within one of the limited exemptions. Such businesses may operate on December 26, January 1, and January 2 but must follow the premium pay and voluntariness of work requirements explained above. Non-retail employers cannot offset premium pay and overtime (see example under Manufacturing Employers above).

Employees of car rental companies that operate at T.F. Green Airport and meet certain requirements, as well as employees of chauffeur driven limousine or taxi cab companies that operate seven continuous days per week, twenty-four hours per day, are exempt from the premium pay requirement. The voluntariness requirement still applies to these businesses.

In addition, employees working in certain businesses or occupations in Rhode Island are exempt from all requirements of the Blue Laws. Exempt employees who may legally work on December 25, December 26, January 1, and January 2 include health care workers, certain employees who provide telephonic customer service, and employees working in restaurants, hotels, summer camps, resorts or other recreational facilities (except health clubs). Businesses are not required to pay these employees premium pay or comply with the voluntariness requirement (again, religious accommodation requirements must still be met).