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Court Expands Right of Employees to Sue Over Sunday Pay

May 9, 2017
A recent Massachusetts Superior Court decision brought together the Blue Laws, the non-payment of wage law, mandatory treble damages, private right of action and attorney’s fees for a quinella of issues. 
A group of employees sued their retail employer claiming unpaid overtime for their work on Sundays. The judge ruled that retail companies that don’t pay overtime for Sunday work may be sued under the Payment of Wages Law, which includes mandatory treble damages and attorneys’ fees. 
The Massachusetts Blue Laws date from Puritan times and govern commercial activity on Sundays and holidays. While Massachusetts has created 55 exceptions over the years, the law requires most retail employers to pay employees time and a half for work performed on Sundays and certain holidays.  
Retailers may not require employees to work on Sunday or retaliate against an employee who refuses to work on a Sunday.
But the Blue Laws create different obligations for retailers on different holidays.  For example, on some holidays, (Martin Luther King Day; President's Day; Patriots' Day) employers may open without a permit. On those holidays, the time-and-one-half pay and voluntary nature of employment requirements do not apply.
On other holidays, work may be performed without a permit, but the time-and-one-half pay and voluntariness of employment requirements are applicable. This list includes New Year's Day, Memorial Day, Independence Day, Labor Day, Columbus Day after noon, and Veterans' Day after 1 p.m.
Finally, Massachusetts has a cluster of “restricted” holidays.  For a retailer to open on these days, the Massachusetts Department of Labor Standards (“DLS”) and the local police department must issue the appropriate permits. While the DLS often does so, it is up to the local chief of police to make the final decision. For a retailer to open, it must pay time and one-half pay and follow the voluntariness of employment rules.  This list includes Columbus Day before noon, Veterans' Day before 1 p.m., Thanksgiving Day, and Christmas Day.
Unlike the Massachusetts wage and hour law, the Blue Laws have never included a private right of action.  They are instead enforced by the attorney general, typically following a complaint by one or more employees. 
In this case, the employees of a retailer brought a private right of action claim alleging that their employer violated the Payment of Wages Law by failing to pay them time and a half for work performed on Sundays. It’s a claim that, if upheld, would entitle the employees to mandatory treble damages and attorneys’ fees.
While the employer sought to dismiss the lawsuit by claiming the Blue Laws do not provide for a private right of action, the Superior Court Judge stated 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.”  That means that the employees may continue their case against the employer. 
While this decision is not the final word on this issue (it may be appealed) the decision is a reminder to employers to pay all wages owed to avoid lawsuits such as this one. It also is a lesson for employers that the Massachusetts courts may not always view Sunday-work lawsuits like this over unpaid wages through the Blue Laws prism, thus exposing employers to the threat of a private right of action and treble damages. 
Employers concerned about this or other HR-related issues may call the AIM Employer Hotline at 800-470-6277.
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