Massachusetts law requires most retail employers to pay employees time and a half for work performed on Sundays and certain holidays. In a case of first impression, a Massachusetts Superior Court judge recently held that retail employers that fail to make such payments may be sued under the state Payment of Wages Law, thereby subjecting them to mandatory awards of treble damages and attorneys’ fees.

Massachusetts Blue Laws Impose Special Requirements on Retailers

A collection of Massachusetts laws establish a general rule that most employers may not be open for business on Sundays and certain holidays. These laws, known as the “Blue Laws,” have their origin in the colonial era. Over the years, the Legislature has amended these laws to contain over 50 exceptions.

For example, the Legislature has created an exemption for “the keeping open of a store or shop and the sale at retail of goods therein.” The Blue Laws also provide, however, that any store or shop that qualifies for this exception “and which employs more than a total of seven persons, including the proprietor, on . . . any day throughout the week, shall compensate all employees engaged in the work performed on” a Sunday or holiday “excepting those bona fide executive or administrative or professional persons earning more than two hundred dollars a week, at a rate not less than one and one-half times the employee's regular rate.”

In addition, regardless of the number of employees a retailer may have, retailers cannot require employees to work on Sunday or retaliate against an employee who refuses to work on a Sunday.

Moreover, the Blue Laws create different obligations on retailers for different holidays. First, the Blue Laws establish certain unrestricted holidays. On these holidays, work may be performed without a permit and the time and one-half pay and voluntariness of employment requirements do not apply. The unrestricted holidays are as follows: Martin Luther King Day; President's Day; Evacuation Day; Patriots' Day; and Bunker Hill Day.

Second, the Blue Laws create some “partially restricted” holidays. On these days, work may be performed without a permit, but the time and one-half pay and voluntariness of employment requirements are applicable. The partially restricted holidays are as follows: New Year's Day; Memorial Day; Independence Day; Labor Day; Columbus Day after 12:00 noon; and Veterans' Day after 1:00 p.m.

Third, the Blue Laws also create “restricted” holidays. On these days, work may be performed only if the Massachusetts Department of Labor Standards (“DLS”) and the local police department have issued appropriate permits. DLS generally issues such permits that are applicable to all retail employers on a state-wide basis. On these days, the time and one-half pay and voluntariness of employment requirements are applicable. The restricted holidays are as follows: Columbus Day before 12:00 noon; Veterans' Day before 1:00 p.m.; Thanksgiving Day; and Christmas Day.

Recent Decision And Liability for Blue Laws Violations

The Blue Laws do not provide an express private right of action. Instead, the Blue Laws state that they “shall be enforced by the office of the attorney general.”

In Basset v. Triton Technologies, Inc., however, the employees of a retail employer alleged that their employer violated the Massachusetts Payment of Wages Law by failing to pay them time and a half for work performed on Sundays. The Payment of Wages Law requires employers to pay employees all “wages earned” by its employees. It is a strict liability statute; and employees who prevail under the Payment of Wages Law are entitled to mandatory awards of treble damages and attorneys’ fees.

The employer in Basset moved to dismiss the employees’ claims for time and a half pay for work on Sundays because the Blue Laws do not provide for a private right of action, and it would be improper for them to use the Payment of Wages Law to create one.

Judge Salinger of the Superior Court denied the motion, reasoning that “[t]he Legislature created a private right of action under the Wage Act to enforce all of an employer’s legal obligations to pay wages earned by an employee. That right of action encompasses claims for non-payment of extra wages earned by working on a Sunday.” According to Judge Salinger, although employees may not have an express right of action under the Blue Laws, the expansive language of the Wage Act encompasses “all wages earned, whether the obligation to pay the wage is solely a function of a private contractual arrangement or arises in whole or in part under a statute.” Accordingly, the employees in Basset may pursue a claim under the Payment of Wages Law for their employer’s alleged failure to provide premium pay for work performed on a Sunday.

Conclusion

It is important to note that this is just one decision from one trial-level court, and it is not binding precedent. That said, the Basset decision serves as an important reminder to retailers about their obligations under the Massachusetts Blue Laws. Because of the sometimes arcane nature of those laws, we recommend that employers work with experienced employment counsel to ensure their compliance with applicable requirements.