MA Minimum Wage Regs Clarified by DLS

Responding to comments from the Home Care Alliance, among a list of other interested organizations, the Massachusetts Department of Labor Standards (DLS) released changes and clarifications to the revised minimum wage regulation (454 CMR 27.00).

The full list of comments from advocacy and business groups as well as the official response from the state was made available through the DLS website and in a notice to those that commented.

Here is a summary of comments from the HCA and the repsonses from DLS:

HCA Comment:

Concerning the proposed promulgation of 454 CMR 27.00 and repeal of 455 CMR 2.00, our agencies seek clarification on Hours Worked under section 27.04. It is noted that the employer and the employee may agree in writing to exclude meal periods and a sleeping period of not more than eight hours. It is unclear, however, if those meal periods are in addition to the eight hours of sleeping time. If a home care worker is in the home for a 24-hour period, it should be clearly defined outside of any written agreements pertaining to what time for meals and sleeping is counted and compensable.

DLS Response:

Meal periods are separate from sleeping time. The“not more than eight hours” refers to sleeping time.

HCA Comment:

We would also appreciate clarification of a reasonable length of those meal periods and whether they are permissible even though the worker is required to remain at the work site during the meal break.

DLS Response:

A meal period is bona fide if the employee is completely relieved from duty and is able to leave the
premises. The DLS will respond to inquiries regarding particular circumstances where the employee is unable to leave the work site for reasons outside the employer’s control. If the employee is able to eat a meal but is not relieved from duty, the time must be paid.

HCA Comment:

We have concerns relative to section 27.07 relative to Notice and Recordkeeping. The
discussion about posting a notice in the primary language of a cohort of any 5% or more of the employers workforce raises a question: How do employers discover employees’ primary languages? This appears to violate the rules of the MA Commission Against Discrimination, and moreover, an employee may have the right to refuse to answer.

DLS Response:
In response to comments from employer’s, the section is modified to require the translated notice if the language is commonly spoken among employees at the worksite. The requirement is not overly burdensome for employers since notices in different languages are only required if the translation is available from the Commonwealth.

DLS Change to Regulation:
27.07 is amended: The workplace notice shall be posted in English, and in any other language that is commonly spoken by five percent (5%) or more of the employer’s workforce and for which a translated notice in that language is available from the Commonwealth.

Other comments, responses and changes can be viewed in the DLS summary of testimony.

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