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It’s The Holiday Season and Time for a History Lesson
The Commonwealth of Massachusetts is a state steeped in history, and the laws are no
exception. Some might call the patchwork of rules known as the Blue Laws archaic. After
all, the Blue Laws date back to the 17th century – to the founding of New England. The
founders wanted to prevent unwholesome activity on Sundays, and over the years these
laws were expanded to include certain holidays. You may be wondering how this impromptu
history lesson applies to your workplace. This year, Christmas and New Year’s Day fall on
Sundays but, are legally observed on the following Monday, which means that employers
receive a double dose of Blue Law headache.
So what are these Blue Laws?
Over the last century, the Commonwealth has gradually narrowed these prohibitions
against operating on Sundays and holidays by enacting numerous piecemeal exemptions to
the Blue Laws, and there are now fifty-five exemptions, that allow certain businesses to
operate legally on Sundays and holidays. However, these existing rules still impose
significant burdens on businesses that may include: closure, premium pay, and
voluntariness of work requirements on December 26 and January 2.
When certain holidays, including Christmas and New Year’s Day, fall on a Sunday, those
holidays are legally observed on Monday. Below we will untangle what this will mean for our
different clients. The answer will depend on the nature of your business..
Manufacturers
Massachusetts law prevents most manufacturers from operating on Sundays without a
permit issued by the local police department. There is a limited exception to this rule that
allows manufacturers to operate on Sundays without a permit if there are “manufacturing
processes which for technical reasons require continuous operations.” Manufacturers that
fall within the exception or who obtain a permit are not required to provide premium pay,
and employees can be required to work.
This same law will apply to manufacturers on Christmas (December 25) and New Year’s
Day (January 1), both of which fall on Sundays.
Although December 26 and January 2 are considered legal holidays, manufacturers will be
able to operate lawfully. However, non-exempt employees cannot be required to work on
those days – all work must be voluntary. Again, there is only a very limited exception to the
voluntariness requirement under the law if the work being performed is both (1) absolutely
necessary and (2) can lawfully be performed on Sunday. As stated above, work on Sunday
may only occur without a permit if the work for technical reasons requires continuous
operation.
Employees may volunteer to work on legal holidays, and premium pay is not required.
Warehouses and Delivery Centers
An Act Relative to Job Creation and Workforce Development, signed by Governor Baker on
August 10, 2016, amended the Blue Laws to allow warehouses and delivery centers to
remain open on Sundays and holidays. The Act revised a section of the law that previously
applied only to the transport of goods and commerce by motor truck or trailer. The section
now includes the “delivery of goods in commerce,” including the operations of facilities and
warehouses related to the delivery.
This means that warehouses and delivery centers and transport operations may operate as
usual on December 25, December 26, and January 1. As written, the law does not require
these employers to provide premium pay, and the voluntariness requirement does not apply.
Retail Employers
Retail employers in Massachusetts may not open on Christmas Day (December 25).
Retailers operating on December 26 must pay non-exempt employees who work on that
day premium pay, defined as at least one and one-half times the employee’s regular rate of
pay. Retailers who open on January 1, and January 2 will also be required to pay nonexempt
employees premium pay and all work must be voluntary. However, premium pay
on December 26, January 1, and/or January 2 can be off set against any overtime worked
in the same workweek. There will be no pyramiding of premium pay, which would require
employers to pay overtime based on the premium rate.
Additionally, retailers cannot require employees to work on December 26, January 1, or
January 2. All work on those days must be voluntary, and refusal to work cannot be
grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty.
Non-Retail, Non-Manufacturer
Employers who are not retailers or manufacturers may not operate on December 25,
December 26, and January 1 unless they are subject to one of the fifty-five exemptions in
the Blue Laws, or obtain a permit from the local police department to operate. Non-retail
employers that fall under one of the exemptions or receive a permit are not required to
provide premium pay, and the voluntariness requirement does not apply (again, religious
accommodation requirements must still be met).
These employers may open on January 2, even without an exemption or permit and the
premium pay and voluntariness requirements do not apply.
A Word About Religious Accommodation
With holidays falling on Sunday employers should remain thoughtful of religious
accommodations to avoid a claim of discrimination. Under Massachusetts law, “it is unlawful
for an employer to impose upon an employee or prospective employee as a condition of
obtaining or retaining employment any terms or conditions which would require the
individual to violate or forego a practice required by his or her religion. This includes but is
not limited to requiring an employee or prospective employee to work on any day or portion
thereof that the employee observes as a Sabbath or holy day.”
To obtain a religious accommodation, an employee or applicant must demonstrate that the
observance of Sunday or the holiday is a required practice of his or her religion and must
notify the employer at least ten days in advance of the requested absence and provide
notice that the absence is for religious purposes. Once this is done, the employer is
required to grant the accommodation unless it would impose an undue hardship.
These laws are enough to give anyone the Holiday “blues,” but we are here to help!