April-15-08

Complying with both State and Federal Wage and Hour Laws

Question: My business partner and I have decided to open a bistro which will serve breakfast, lunch and dinner. Because some employees may initially work more than forty hours per week I am concerned with overtime law compliance. I understand that the Office of the Massachusetts Attorney General enforces overtime laws and I called their hotline but was informed that Massachusetts’ overtime law specifically exempts restaurants from the overtime pay requirements. I am still uncomfortable, however, because I know that friends in the industry pay their staff time and one-half for overtime. Can you provide some guidance?

TGL Response: It is true that restaurants are exempt from Massachusetts’ overtime requirements. All Massachusetts businesses, however, must comply with both federal and state law relating to overtime pay. The law requires that whichever provisions are most advantageous to the employee will apply. Under the federal Fair Labor Standards Act, there is no restaurant exemption to federal overtime requirements. All restaurants must pay employees one and one-half times the employees’ regular rate of pay for any work performed by such employees in excess of forty in any single workweek. The employer may designate the workweek (e.g. Sunday at 6:00 a.m. to Sunday at 6:00 a.m.) but may not constantly change the workweek designation once set.

Note that, because Massachusetts minimum wage law is more advantageous to the employee than federal law, Massachusetts minimum hourly wage rate requirements of $2.63 for tipped employees and $7.50 for non-tipped employees will apply.