Opinion Letter

November 19, 2001

RE: Overtime Pay - Sunday

Your letter to the Fair Labor & Business Practices Division of the Attorney General's Office regarding overtime pay has been forwarded to this Office. While the Attorney General's Office enforces the Massachusetts Minimum Fair Wage Law and Regulations, the Division of Occupational Safety is responsible for interpreting these laws. [1]

Under the Massachusetts Minimum Fair Wage Law, G.L. c. 151, §1A, employees in covered occupations must be paid at least one and one-half times their regular rate of pay for time worked in excess of 40 hours in a given week. The question you have posed involves the overtime pay due to retail sales employees who are paid on an hourly basis for a Sunday to Saturday work week. These employees are paid at a premium pay rate of one and half times their regular hourly rate of pay for work performed on Sunday, as required by G.L. 136, §6(50). [2] You have asked what wages would be due such an employee who works five hours on Sunday, and 40 hours during the rest of the work week. The issue raised by this question is whether hours worked on Sunday, which have already been paid at time and one-half, should be counted towards the 40-hour work week, for purposes of overtime calculation. [3]

I find no Massachusetts case law to give us direction in this matter. In such cases, we may look to analogous federal laws for guidance; however, we are not bound by them. See Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 170 (2000). The federal law states that extra compensation paid as described in 29 U.S.C. §207(e)(6) - i.e. "extra compensation provided by a premium rate paid for work by the employee on . . . Sundays . . . where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in nonovertime hours on other days" - may be credited towards overtime compensation required by law. 29 U.S.C. §207(h). See also, 29 C.F.R. §§778.201, 778.203. Therefore, under federal law, the employer may credit such premium pay towards overtime payments due the employee. In the above example, the employer who has paid its employee at least time and one-half the employee's regular rate of pay for eight hours worked on Sunday may pay that employee at his/her regular rate of pay for the 40 hours worked from Monday to Friday.

However, there is an important difference between how federal law and state law treat premium pay. The federal law does not require premium pay for weekend work whereas premium pay for certain retail workers is mandatory under G.L. 136, §6(50). Even in the absence of legislative history, it is logical to conclude that the General Court, in enacting this law, intended all such retail workers to receive an extra benefit for working on a Sunday. If we were to apply the federal interpretation to state overtime law, that legislative goal would be frustrated because the premium pay statute would provide an added benefit only to persons working 40 hours or less per week. The following two examples are illustrative: Employee A works eight hours on Sunday and 30 hours the rest of the work week. This employee receives the full benefit of the premium pay statute as s/he receives time and one-half for hours worked on Sunday, and straight-time for the remaining 30 hours. Employee B works eight hours on Sunday and 40 hours the rest of the work week. If the employer is permitted to credit the eight hours of premium pay towards overtime payments due, that employee would receive no benefit from the premium pay statute. Each hour of premium pay would effectively negate an hour of overtime due the employee under G.L. c. 151, §1A. We do not believe the Legislature intended for the premium pay statute to benefit retail workers on an unequal basis. Therefore, we decline to interpret the Massachusetts Minimum Fair Wage Law to permit employers to credit premium pay towards required overtime payments. Where state law does not contravene federal requirements, no federal law or interpretations thereunder should be taken to override state law. See, 29 C.F.R. §778.5.

Applying this interpretation to your question, mandatory premium pay paid to a covered retail sales employee who works on a Sunday may not be credited towards any overtime payments required by state law for that work week. For example, if an employee works five hours on Sunday and 40 hours for the remainder of the work week at a regular hourly rate of $8 per hour, that employee will be due premium pay for the five hours on Sunday, $60 ($12 x 5), straight-time pay for 35 hours, $280 ($8 x 35), and overtime pay for the five hours worked over 40 hours, $60 ($12 x 5), for total wages of $400.

The result must be the same even if the Sunday premium pay hours coincide with overtime hours due the employee. For example, if an employer utilizes a Monday to Sunday work week, and an employee works 40 hours from Monday to Friday at a regular hourly rate of $8 and another five hours on Sunday, the five hours of premium pay may not be credited towards required overtime payments. The employee should receive straight-time pay for 40 hours, $320 ($8 x 40), premium pay for the five hours on Sunday, $60 ($12 x 5), and additional half-time pay for the five overtime hours worked, $20 ($4 x 5), for total wages of $400.

I hope this information has been helpful. If you have any questions, please feel free to contact me.

Lisa C. Price
Legal Counsel

[1] Your letter also posed a question regarding an Attorney General's Office advisory on employers' vacation policies. Any questions about this advisory were properly addressed to that Office.

[2] Massachusetts G.L. c. 136, §6(50) provides, in pertinent part, that a retail store which is permitted to open on Sundays, under certain conditions, under this clause "which employs more than a total of seven persons, including the proprietor, on Sunday or any day throughout the week, shall compensate all employees engaged in the work performed on Sunday pursuant to the provisions of this clause . . . 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."

[3] You have asked to have this letter sent to your former employer. However, since this Office does not enforce the minimum wage and overtime law, applicability determinations are generally directed to the person making the request.