Boston Location

35 India Street, #301
Boston, MA 02110
p. 508-922-8328
f. 866-700-0181
info@bacelaw.com

Gloucester Location

81 Prospect Street, 2nd Floor
Gloucester, MA 01930
p. 508-922-8328
f. 866-700-0181
info@bacelaw.com

All Mailings

PO Box 9316
Boston, MA 02114
Can I be fired for complaining about owed overtime, or misclassification?

No.  You cannot be lawfully terminated solely because you are exerting your legal rights to be compensated correctly.  If you are fired in retaliation, it may give rise to a wrongful termination claim that can be pursued in conjunction with whatever you are owed in wages and/or overtime.  However, it is impossible to predict the actions of your employer.

If I work more than 40 hours in a week, am I owed more money per hour?

Yes, unless you are a particular type of employee who is exempt from the overtime requirement.  Under both state and federal law, for every hour that you work in excess of 40 for any given week, you are entitled to an overtime premium pay of one and one half times (1.5x or “time and a half”) your regular hourly rate.

What kinds of employees are exempt from overtime pay under both federal and state law?

Under both federal and state law, in general, there exists an Executive Exemption, Outside Sales, Administrative Exemption, Professional Exemption, and Creative Professional Exemption.

Employees whose primary duty is making sales, or obtaining contracts for services, and who regularly work away from their employer’s place of business may not be entitled to overtime via the <i>Outside Sales Exemption</i>.

Employees who earn more than $455 per week, who manage the business (or a subgroup), who regularly supervise two or more other employees, and have the authority to hire and fire – may not be entitled to overtime via the  <i>Executive Exemption</i>.

Employees who earn more than $455 per week, who perform work requiring “advanced knowledge,” in a field of science or learning, may not be entitled to overtime via the <i>Professional Exemption</i>.

Employees who earn more than $455 per week, who perform work that requires invention, imagination, originality, or talent in a artistic field, may not be entitled to overtime via the <i>Creative Professional Exemption</i>.

Employees who earn more than $455 per week, whose primary duty is office or non-manual work directly <i>related</i> to the managerial or general business operations, may not be entitled to overtime via the <i>Administrative Exemption</i>; this exemption, is interpreted broadly, and applies to a wide-array of workers.

 

 

What kinds of employees are exempt from overtime under just the Massachusetts law?

If you work in any of the following capacities, you may <i>not</i> be entitled to overtime under the state law; however, this determination can only be made after a Massachusetts employment attorney reviews the facts and circumstances of your case.

(1) as a janitor or caretaker of residential property, who when furnished with living quarters is paid a wage of not less than thirty dollars per week.

(2) as a golf caddy, newsboy or child actor or performer.

(3) as a bona fide executive, or administrative or professional person or qualified trainee for such position earning more than eighty dollars per week.

(4) as an outside salesman or outside buyer.

(5) as a learner, apprentice or handicapped person under a special license as provided in section nine.

(6) as a fisherman or as a person employed in the catching or taking of any kind of fish, shellfish or other aquatic forms of animal and vegetable life.

(7) as a switchboard operator in a public telephone exchange.

(8) as a driver or helper on a truck with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section two hundred and four of the motor carrier act of nineteen hundred and thirty-five, or as employee of an employer subject to the provisions of Part 1 of the Interstate Commerce Act or subject to title II of the Railway Labor Act.

(9) in a business or specified operation of a business which is carried on during a period or accumulated periods not in excess of one hundred and twenty days in any year, and determined by the commissioner to be seasonal in nature.

(10) as a seaman.

(11) by an employer licensed and regulated pursuant to chapter one hundred and fifty-nine A.

(12) in a hotel, motel, motor court or like establishment.

(13) in a gasoline station.

(14) in a restaurant.

(15) as a garageman, which term shall not include a parking lot attendant.

(16) in a hospital, sanitorium, convalescent or nursing home, infirmary, rest home or charitable home for the aged.

(17) in a non-profit school or college.

(18) in a summer camp operated by a non-profit charitable corporation.

(19) as a laborer engaged in agriculture and farming on a farm.

(20) in an amusement park containing a permanent aggregation of amusement devices, games, shows, and other attractions operated during a period or accumulated periods not in excess of one hundred and fifty days in any one year.

 

My employer calls me an “independent contractor”; am I really an employee?

Probably.  In order to be a correctly, and lawfully classified “independent contractor” in Massachusetts, <i>all three of the following must be true</i> –

1.  You own and operate your own business; <i> and</i>

2.  The work you’re doing is work that is <b>not</b> work the company/employer performs in their regular course of business; <i>and</i>

3.  You are free from the company/employer’s direction and control in how you go about performing the work.

If you can answer “NO” to any of the three prongs above, you are an employee.  You are an employee even if you signed a contract that says something different.  You are an employee even if you like the idea of being an independent contractor.  You are an employee even if you agreed to be an “independent contractor”.

 

Does it matter if I am misclassified? Does it matter that I’m called an “independent contractor,” when I am really not in the eyes of the law?

Yes.  It matters a great deal.  One of the reasons that employers call certain workers, truck drivers, logistics laborers “independent contractors” is that they think it allows them to avoid paying them overtime, and all the other benefits of correctly classified employment.

Non-exempt employees are entitled to overtime pay for every hour they work over 40 in a given week – by misclassifying you, your employer is avoiding paying you that premium.

Employees generally receive retirement benefits, and health benefits – by misclassifying you, your employer is denying you these benefits while giving them to correctly classified employees <i>who often work right alongside you</i> performing the exact same job.

Generally, employees do not pay for “business expenses,” such as gas, maintenance on vehicles, supplies, etc…By misclassifying you, your employer may be attempting to pass the costs of doing business on to you.

If I’m owed overtime or misclassified, what am I entitled to?

The law in Massachusetts entitled you to triple damages.  A Judge/jury cannot decide to apply the triple damages penalty in one case, and not apply it in another.  If a wage and hour violations exists (such as a failure to pay you overtime), the triple damages penalty is non-discretionary, which means it must be applied in every case.  If you are owed $1.00 in damages, you must be awarded $3.00, plus an award of reasonable attorney’s fees.

Given how strict the penalty is, many employers are willing to resolve a case quickly, without the need to litigation.

Am I owed wages for waiting time? On-call time?

Drivers, whether livery, cab, limousine, delivery, or otherwise, are regularly not compensated for time spent waiting for a fare, or “on-call,” or the time spent on ancillary activities such as loading and unloading the vehicle. Pursuant to state and federal law, this time may be compensable depending on the circumstances. If you work in one of these industries or another where you wait between jobs or are “on-call,” you may be able to compensation for that time, regardless of whether you signed an Agreement to the contrary. The US Supreme Court in Skidmore et al v. Swift & Co., 323 U.S. 134, 137 (1944) determined that the applicable standard is whether an employee was “engaged to wait” or “waiting to be engaged” by looking at the facts of each individual circumstances on a case by case basis.

The court did state factors in this determination included: the custom and nature of the industry and its relation to the waiting time, any existing arrangement between the employer and employee, and the “practical construction” of the working agreement by looking at conduct. Another key factor the court considers is the how much personal activity can be engaged in during that waiting period. The last major factor in figuring out if the on-call time is compensable is whether the time spent was primarily for the benefit of the employer or the employee.

Why choose a small law firm?

Flexibility
A large law firm, like any huge organization, is eventually slowed by its own bureaucracy. Over time, large firms become inflexible and tend to operate more and more for the benefit and convenience of its members, rather than the benefit and convenience of its customers. A smaller firm comprised of Boston attorneys is relatively immune from that phenomenon and, therefore, can provide service that is more responsive and better-tailored to each client’s needs.

Efficiency
At a typical larger firm, documents often are repeatedly passed along by redundant layers of junior associates, mid-level associates, senior associates, and junior partners, before getting the attention of a senior partner. That is slow, inefficient, and expensive. The large firm does not care, because that is one of the ways it makes money: by leveraging the billable hours of its professional staff. Small firms, like Bace Law Group, LLC, focuses on collaboration and cannot afford to engage in such activity. You are a big fish. In a large firm, many clients will find they are rather small fish in the firm’s pond, and are treated accordingly. In a huge firm, even a Fortune 500 company may not be a particularly big fish. A small firm has no small fish in its pond. Because repeat business is so desirable, every client is important and is treated accordingly.

Access
Unlike large firms, our Boston and Massachusetts attorneys are happy to have clients contact us, day or night. Clients may contact us via any of the following methods: mail, e-mail, fax, Web site, office phone, home phone, and cell phone. Calls to this office are automatically routed to an attorney cell phone. This office strives to be accessible almost anywhere and anytime, including while away on vacation. If you use a larger firm, when is the last time one of the lawyers there gave you his cell number and urged you to use it?

Value Billing
A small firm gives the client a lower cost for a like kind and quality of work. An experienced, knowledgeable small firm attorney can often perform legal tasks in far less time than would be required by a large firm and its bureaucracy. Large firms can give their staffs a lot: high salaries, bonuses, beautiful mahogany offices, catered food at meetings, golf outings at expensive country clubs, limo service home for anyone working past 5:00, in-house cafeterias, in-house gyms, expense accounts, etc. Well, who do you think is paying for that? The Clients. Small, mobile, and collaborative law groups like ours do not have to pay for that kind of fixed overhead, and can pass the savings along to their clients.