Seasonal camp counselors no longer need a minimum wage waiver

THE COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF LABOR AND WORKFORCE DEVELOPMENT
DEPARTMENT OF LABOR STANDARDS

CHARLES D. BAKER ROSALIN ACOSTA
GOVERNOR SECRETARY

KARYN E. POLITO WILLIAM D. McKINNEY
LIEUTENANT GOVERNOR DIRECTOR

                                                                  January 23, 2018

     MW-2018-1-23-18

    To Interested Parties:


            On July 1, 2017, two amendments to chapter 151 of the Commonwealth's General
    Laws ended the authority and the need for the Department of Labor Standards (DLS) to
    issue minimum wage waivers for seasonal camp counselors. Prior to July 2017, and
    pursuant to 454 CMR 27.06(2) the "Director" of DLS could, in accordance with M.G.L. c.
    151, § 7, issue to any seasonal camp a waiver permitting payment of less than the minimum
    wage to seasonal camp counselors or counselor trainees for such period of time as shall be
    fixed by the Director and stated in the waiver ... "

            The Director's former authority to issue these waivers was found in the second
     paragraph of section 7, which until July 1, 2017 read as follows,

                    "The commissioner shall not establish minimum fair wage
                    rates below $1.85 per hour, except for learners and
                    apprentices, except for seasonal camp counselors and
                    counselor trainees, and except for ushers, ticket sellers and
                    ticket takers whose minimum fair wage rates shall not be
                    below $1.25, and except for janitors and caretakers of
                    residential property ... "[Emphasis added]

             Under the July 1, 2017 amendment, reference to "camp counselors and counselor
     trainees" was deleted,

                    "The commissioner shall not establish minimum fair wage
                    rates below $1.85 per hour, except for learners, apprentices
                    and ushers, ticket sellers and ticket takers whose minimum
                    fair wage rates shall not be below $1.25, and except for
                    janitors and caretakers of residential property ... "

             The legislative directive as set forth in the amended statute is clear, "The
     commissioner shall not establish minimum fair wage rates ... except for ... " specifically
     listed professions, and "camp counselors and trainees" were taken off that list.

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    The minimum wage law forbids an "employer to employ any person in an

occupation in this commonwealth at an oppressive and unreasonable wage", which is
generally understood to be a wage that is less than the $11 per hour basic minimum wage.
This statutory prohibition is limited by the definition of "occupation" (found at M.G.L. c.
151, s. 2), which as of July 1, 2017 was also amended to explicitly exclude "work by
seasonal camp counselors and counselor trainees". Therefore, since July 1st it is no
longer illegal for an employer to employ a "seasonal camp counselor" at a rate below the
basic minimum wage as such counselors are not engaged in an "occupation" as now
redefined.

    The Massachusetts Overtime Law is also not applicable to "seasonal camp

counselors and counselor trainees" as that statute contains similar language - "Except as
otherwise provided in this section, no employer in the commonwealth shall employ any
of his employees in an occupation, as defined in section two, for a work week longer
than forty hours, unless such employee receives compensation for his employment in
excess of forty hours at a rate not less than one and one half times the regular rate at
which he is employed. [Emphasis added]"

   Since seasonal counselors and counselor trainees are not engaged in an

"occupation", as defined in M.G.L. c. 151, s. 2, the overtime statute is inapplicable to
them for the same reason as was the minimum wage statute.

    The new minimum wage and overtime exclusion created by the July 1, 2017

amendments to M.G.L. c. 151, sec.s 2 & 7 only relate to the "seasonal camp counselors
and counselor trainees". Thus, if any seasonal camp- that does not otherwise qualify for
exempt status pursuant to M.G.L. c. 151, s.lA (18)- wants to exempt its employees who
work as dish washers, kitchen workers, maintenance workers, life guards or in other jobs
that do not entail the direct supervision of campers, then it must still apply for an
overtime waiver. The exemption for "seasonal business open less than 120 days per year"
under M.G.L. c. 151, s. 1A(9) is dependent on the receipt of a determination from the
Director of DLS that the business is in fact "seasonal in nature". DLS only
makes "seasonal determinations" in connection with granting overtime waivers for
seasonal businesses. The receipt of an Overtime Waiver for Seasonal Business signed by
the Director of this department is confirmation that the Director has determined the
recipient's business to be seasonal in nature.

  The opinion letter issued by this department on January 7, 2015 entitled MW-

2015-01-01.07.15 is hereby rescinded.

    Sincerely,



    William D. McKinney, Director