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Big Three Summer Holidays Loom for Employers

May 4, 2018
 
The big three summer holidays (Memorial Day, Fourth of July and Independence Day) are just around the corner.
 
Memorial Day (May 28) typically marks the start of the summer holiday season while Labor Day (September 3) usually marks the end. A complicating factor for some employers this year is that Independence Day falls on a Wednesday, meaning employees may want the week off or take a couple of days on either side of the Wednesday to create a “bridge” to the weekend. 
 
Here are some of the legal and operational issues around the summer holidays.  
 
Blue Laws
 
Holiday pay
 
All three of the summer holidays are subject to the Massachusetts Blue Laws. The impact of the Blue Laws varies depending on the industry - manufacturing, non-retail/non-manufacturing or retail. For example, the Blue Laws require retail companies to pay overtime (time and one half) for work on those three holidays.
 
For the other categories of business, overtime payments are triggered only when an employee works on the holiday and those hours worked cause the employee to exceed 40 hours in that week or there is a company policy or written contract to the contrary.  
 
Opening on the holiday
 
Manufacturers may lawfully open on legal holidays provided they obtain a permit from the police commissioner of the city of Boston, or his designee or the chief of police or the board or other officer in charge of the police department of any other city or of any town. 
 
Retailers do not have to obtain a permit to open on those holidays.  
 
Work requirements
 
Massachusetts law provides that non-exempt employees may not be required to work on the three summer holidays when the company is open. They must instead be given the option to work or not. The statute reads: 
 
Whoever requires an employee to work in any mill or factory on any legal holiday, except to perform such work as is both absolutely necessary and can lawfully be performed on Sunday, shall be punished by a fine of not more than fifteen hundred dollars."
 
There is a limited exception that applies if the manufacturing work being performed is both 
  • " absolutely necessary" and
  • "can lawfully be performed on Sunday" 
meaning that "for technical reasons [it] require[s] continuous operation …" The determination of continuous operation should not be made by the employer, but by the state. 
 
The law also provides that “No person shall require or request any employee of a manufacturing or mechanical establishment to work more hours in any one day than is limited by law to make up time lost by reason of a legal holiday.”
 
The same rule applies for retail employers. A retail employer may not require its employees to work the three summer holidays, but if employees do work, they must be paid overtime no matter how many hours they work that week. 
 
Non-manufacturing, non-retail businesses may require work provided they have a permit. 
 
Memorial Day
 
A recent state law requires that employers provide a day off to veterans who wish t participate in a Memorial Day exercise, parade or service. Employee veterans are entitled to leave “of sufficient time to participate” in an event that takes place in the veteran’s “community of residence.”
 
Unlike the paid time-off provision for veterans participating in Veteran’s Day activities, time off to participate in a Memorial Day event may be paid or unpaid. Furthermore, employers are not required to provide leave where an employee provides services that “are essential and critical to the public health or safety and determined to be essential to the safety and security of each such employer or property thereof.”
 
Fourth of July
 
As noted above, the Fourth is a Wednesday this year so many employees may seek to take half of the week off. Remind employees about your vacation request policy to ensure they follow the protocol and to ensure adequate coverage. 
 
Please contact the AIM Employer Hotline at 800-470-6277 if you have any questions about this or any other HR-related matter. 
 
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