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Ask the Hotline | Do Call-Center Employees Qualify for Sunday Pay?

January 28, 2020
Are call-center workers entitled to premium pay for work on Sunday? 
A recent Superior Court decision in Massachusetts makes it clear that, in some cases, the answer is yes. While the decision addresses two important issues for employers - premium pay and pay associated with any preemployment activities - let’s begin by discussing the Sunday premium pay first. 
Premium pay for any retail work
One of the novel questions posed by this case is whether employees at a call center are subject to the Sunday premium-pay law traditionally associated with employees working in a retail store at a mall or in a downtown.
The court determined that the employees in this call-center were not primarily providing technical support services for existing customers to call into but were actually selling the company’s product over the phone. And because the customer-service representatives were selling, the court reasoned that they were retail employees and therefore entitled to the Sunday premium pay law. 
While the employer argued that it was not subject to the Sunday premium pay law because it was not operating in a “store or shop” as described in the statute, the court rejected the argument that the statute applies only to employees working in traditional “brick-and-mortar” retail establishments. 
The judge wrote that “Nothing in the Sunday Pay Statute … mandates that a ‘store or shop’ possess a ‘storefront’ or a ‘physical space open to the general public’ in order to be subject to its requirements, nor would it be logical in this technology-driven day and age to imply such a mandate.” 
The employer had paid premium pay to its employees previously for Sunday work but ceased doing so when it had trouble staffing for Saturday.
The court also noted that the employer paid sales tax on each transaction sold by the call center, reinforcing the view that its activities were primarily for sales not for technical support or service.
Any employer with a call center dedicated to selling rather than supporting or servicing its products is likely to be viewed in the courts as a retail operation subject to Sunday premium pay if it operates on Sundays. 
The victory is a pyrrhic one for the employees because Sunday premium pay is currently in the process of being phased out (reduced from its previous 1.5 times an employee’s hourly rate to1.3 times for 2020, 1.2 times for 2021 and 1.1 times for 2022 until it is eliminated at the start of 2023).
Pre-employment activities
In the same lawsuit, the employees claimed that the employer violated the Wage Act by failing to pay incoming employees for attendance at mandatory “growth sessions” conducted during the hiring process and by not compensating current employees for attendance at “volunteer day” events.
On those questions, the court ruled that the employer did not need to pay the employees for attendance at pre-employment “growth sessions” required by the company as part of its hiring process. In reaching that decision the judge wrote that “it is neither unreasonable, nor unlawful for the employer to not compensate job candidates who attend one of its growth sessions because they simply are not ‘employees’ of the Company.”
The judge concluded that there were issues of material fact that prevented him from ruling on the question of whether the employer had a legal obligation to pay any employees for attending team-building events, meaning that the issue would have to be decided at trial. 
In many ways the second question about payment for pre-employment activities may be a more significant one as employers struggle to determine the appropriate screening process to ensure that they have hired a qualified employee for a position. 
AIM members interested in learning more about this or other wage-and-hour issues may call the AIM Employer Hotline at 800-470-6277. 
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