A deep dive into Massachusetts’ restaurant labor laws

Massachusetts has a unique mix of labor laws and employee protections that apply to restaurants in the state. Between their relatively high minimum wage and tip credit, wide-ranging state law on tips, and detailed guidelines on employing minors, it can be hard for restaurants to navigate.

Plus, their “triple damages” clause makes labor law violations far more expensive in Massachusetts than in most other states. How expensive?

Wendy’s paid $400,000 to settle child labor law violations where 16- and 17-year-olds worked later or longer than allowed. Two Simco’s Restaurant locations paid $210,000 after violating minimum wage and overtime regulations.

With costs this steep for violations, it pays for Massachusetts restaurant owners to understand and stay compliant with the state’s labor laws.

Basic employee rights in Massachusetts

All employees in Massachusetts, including tipped and non-tipped restaurant workers, have a set of basic rights. Many of these rights are based on the federal Fair Labor Standards Act (FLSA), but Massachusetts also has some unique state-level protections.

Fair Labor Standards Act

The Department of Labor’s Fair Labor Standards Act (FLSA) is a federal law that applies in every state. It lays out worker protections and labor standards across every industry. Certain sections of the FLSA provide clear guidance to the restaurant industry—especially to tipped workers.

Under the FLSA, employers can only take employee tips to:

• Distribute in a reasonable tip-pooling arrangement
• Cover credit card fees for tips collected using credit cards

The FLSA sets strict standards for overtime pay, tips and tip pooling, and tipped employees working dual jobs. But the FLSA also states that when a state or local municipality has different labor laws, whichever is more generous to the worker takes precedence.

Massachusetts minimum wage

The state minimum wage in Massachusetts is $15 per hour for most employees, including all restaurant employees. This is more than double the federal minimum wage.

But, like in most states, there’s an exemption for tipped employees called a tip credit. Employers have to pay their tipped workers at least $6.75 per hour, with the expectation that they’ll make at least $15 per hour after tips. But if they don’t reach that $15 per hour, the employer has to pay them the difference.

In other words, if an employee works 35 hours in one week at $6.75 per hour and earns $185 in tips, that would only average out to $12.04 per hour. So, the employer would have to pay them that additional $2.96 per hour for the hours they worked that week to get them up to $15 per hour.

Tipping laws for restaurants in Massachusetts

Each state has unique laws when it comes to tipping. The Massachusetts Tip Act (MTA) overrules the FLSA in several areas:

• Owners, managers, and supervisors can’t keep any mandatory service charges. They must distribute them to wait staff, service employees, and bartenders.
• Employers can charge administrative fees. However, they must inform customers that this fee “does not represent a tip or service charge for wait staff employees, service employees, or service bartenders.”
• Employers can’t take any portion of employee tips.
• Employers can require employees to use a tip-pooling arrangement, but they have to divvy up the pool fairly among all service workers (based on hours worked and contributions to service).
• Restaurants can’t require employees to participate in a tip-pooling arrangement if they don’t receive tips directly from customers.
• Employers can’t try to force, bribe, or convince employees to waive their MTA rights.
• Employers who violate the act are liable for triple damages for unpaid tips and service charges, along with attorneys’ fees and other costs.

A quick note on breaks and meal periods

If an employee works at least a six-hour shift, Massachusetts law entitles them to one meal break of at least 30 minutes. But this break can be unpaid, and employers can also ask employees to voluntarily work through their break for pay.

The fine for violating the meal break statute is between $300 and $600. However, unlike many other states, Massachusetts doesn’t require employers to offer any on-the-clock 15-minute breaks.

Child labor laws in the restaurant industry

Massachusetts has laws about child labor, including certain carve-outs for the restaurant industry. Children as young as 14 years old can work in Massachusetts, but 14- and 15-year-olds have a long list of rules when it comes to working in restaurants.

Kids under 16 can’t cook on anything other than a grill (with no open flame). They can’t operate fryers, rotisseries, or food slicers. They can’t even bake or clean hot kitchen surfaces.

Minors aged 16 and 17 have fewer restrictions—they can cook, fry, and bake, although certain pieces of equipment are still off-limits. But they can only work between 6 a.m. and 10 p.m. if they have school the following day. This bumps up to midnight if there’s no school the next day.

They’re also limited to 48 hours a workweek, nine hours a day, and six days a week (regardless of school days). Any minors working after 8 p.m. “must have the direct and immediate supervision of an adult supervisor who is located in the workplace and is reasonably accessible to the minor.”

Dave and Buster’s, which operates three locations in the state, was recently ordered to pay more than $275,000 for violating Massachusetts child labor laws. Most of the violations were for requiring minors to work later than allowed and for not allowing mandated meal breaks.

Termination and retaliation laws

Massachusetts has employment laws in place to protect employees from unlawful termination and workplace retaliation. As a restaurant owner, it’s important to be aware of these laws, so you can protect your business from legal trouble.

Termination

First, termination: Massachusetts is an at-will state, meaning Massachusetts employers can terminate employees for any reason and at any time, with or without notice.

Of course, there are plenty of exceptions to this rule. Boston attorney Robert S. Mantell (Powers, Jodoin, Margolis & Mantell LLP) has put together a convenient checklist with a dizzying number of potentially illegal causes for termination.

Introducing the checklist, Mantell says this:

“Many of the exceptions to the at-will rule are open-ended and susceptible to wide interpretation. For example, it is illegal to terminate employees for engaging in ‘concerted activity’ or in violation of ‘public policy.’ These exceptions to the at-will doctrine will continue to evolve and broaden.”

Terminations based on job performance are arguably the safest type. But anything related to personal attributes (age, gender, religion, race, national origin, physical features, parenthood, sexual orientation, etc.) is a definite no-go.

You also can’t fire employees for participating in protected activities—which includes reporting negative information about an employer.

Retaliation

Employees who lose their jobs after filing a complaint or reporting a violation may have a strong case that they were victims of employer retaliation. This is especially true when the employer has no good cause for termination. But even having a cause is not enough if the employee can lay out a convincing case that the real cause was retaliation.

The best approach to termination (and avoiding retaliation claims) is to clearly and completely document the reason for termination. Keep careful records of any performance-related issues, training or coaching efforts, or disciplinary measures.

Make sure you apply policies consistently and tread carefully (with legal counsel, when necessary) if the person you plan to fire is part of a protected class.

Additional resources

Use these additional resources to keep learning about restaurant labor laws in Massachusetts, including those that affect tipped employees.

• Massachusetts state guidelines on minimum wage, overtime, and holiday pay
• FLSA Fact Sheet #15: Tipped Employees
• FLSA Fact Sheet #15A: Dual Jobs and Tip Credits
• State guidelines on employing minors
• State guidelines on retaliation