454 Mass. Reg. 27.03 : — DEPARTMENT OF LABOR STANDARDSMinimum Wage Regulations — Minimum Wage and Overtime Rates

(1) Basic Minimum Wage. At least the basic minimum wage in effect under M.G.L. c. 151, § 1 must be paid to an employee in an occupation as defined in M.G.L. c. 151, § 2, unless a lesser wage is expressly permitted by law or a waiver of the basic minimum wage is granted in writing by the Director in accordance with M.G.L. c. 151, § 7 or 9.

(2) Minimum Wage for Tipped Employees. The minimum wage rate for a tipped employee may be comprised of both:

(a) the service rate paid by the employer; and

(b) tips actually received and retained by the employee. The sum of the service rate and the tips received by the employee must equal or exceed the basic minimum wage. The service rate shall be not less than the cash wage required to be paid to a tipped employee in M.G.L. c. 151, § 7. An employer may pay the service rate to the employee only if:

1. the employer informs such employee in writing of the provisions of M.G.L. c. 151, § 7, paragraph three;

2. the employee actually receives tips in an amount which, when added to the service rate, equals or exceeds the basic minimum wage; and

3. all tips received by the employee are either retained by him or her or are distributed to him or her through a tip-pooling arrangement. If the employee is engaged in the serving of food or beverages, a tip-pooling arrangement must conform with the requirements of M.G.L. c. 149, § 152A. Unless all three of the foregoing requirements are met, the employer must pay a tipped employee at least the full basic minimum wage.

(3) Overtime Rate. One and one half times an employee's regular hourly rate, such regular hourly rate not to be less than the basic minimum wage, for work in excess of 40 hours in a work week, except as set forth in M.G.L. c. 151, § 1A. The terms " bona fide executive, or administrative or professional person" in M.G.L. c. 151, § 1A(3), and "professional service" in M.G.L. c. 151, § 2, shall have the same meaning as set forth in 29 CFR Part 541 .

Whether a nonexempt employee is paid on an hourly, piece work, salary, or any other basis, such payments shall not serve to compensate the employee for any portion of the overtime rate for hours worked over 40 in a work week, except that this limitation only applies to the "one-half" portion of the overtime rate (one and "one-half" times an employee's regular hourly rate) when overtime is determined on a bona fide fluctuating workweek basis.

The overtime rate for a tipped employee receiving the service rate shall be computed at one and one half times the basic minimum wage, except where exempted by M.G.L. c. 151, § 1A.

454 CMR 27.03

Adopted by Mass Register Issue 1278, eff. 1/16/2015.