Question

Our retail business is planning to open on both Columbus Day and Veterans Day this year. My boss read somewhere that there were limitations under Massachusetts law on opening these two days. Is that true? If so, is there anything we can do about it?

Answer

Massachusetts Gen. Laws Chapter 136 §13 imposes two specific limitations on retail employers seeking to open on either or both of those holidays – a requirement to pay premium pay and get a permit from the local police chief to open for a portion of these holidays.

The premium-pay provision requires “any retail establishment which operates on Columbus Day or the Veterans Day holiday to compensate employees who work on the holiday with 1.1 times regular pay,” and “such work shall be voluntary and refusal to work for any retail establishment on such legal holidays shall not be grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty.”

The 1.1 times pay provision expires at the end of this year to conclude the phaseout of premium pay for Sundays and holidays begun in 2019.  Note that premium pay for Sundays and holidays is distinct from the requirement that employers pay 1.5 times the regular rate for overtime (hours over 40 in a week), which remains unchanged.

Permitting process

The provision requiring employers seeking to operate before Noon on Columbus Day and before 1 pm on Veterans Day to obtain a permit from the local chief of police remains in effect, as it has for decades. The permit requirement applies to manufacturing and retail operations. The application processes is established in section 15 of chapter 136 of the Mass General Laws.

The “local chief of police, the chief’s designee, or the chair of the board of selectmen if there is no police department” … “may, with respect to any legal holiday to which the blue laws apply grant any permit for the performance of necessary work or labor, and, in addition, a permit for the performance of work on such holiday when due to special circumstances relating to manufacturing, serious production inconvenience, will result if such work is not performed on such holiday. “

Permits for retail facilities to open on Columbus Day and Veterans Day require approval from the Massachusetts Department of Labor Standards, which “shall approve such permits only on a uniform basis statewide.”

The local chief of police may grant a permit for the performance of work on such holiday by clerical and office personnel in offices that are corporate offices or branches of interstate manufacturing operations working in other states on such holiday or in offices connected with manufacturing plants in the commonwealth whether or not production work is being carried on therein on such holiday, if inconvenience will result if such work is not performed on such holiday.

The fee for a permit is a maximum of $10 and is only good for one day. Any application for a permit may be made within 60 days prior to the day on which the permit is to be used, and the permit shall be issued or denied within fifteen days of application.

Statewide approval granted

One permit obstacle was eliminated on August 1, 2022, when the Massachusetts Department of Labor Standards (DLS) issued a preemptive statewide approval of all permits issued by local chiefs of police for any openings prior to Noon on Columbus Day, October 10, 2022, and prior to 1 pm on Veterans Day, November 11, 2022.

According to the DLS approval, the following conditions may apply:

• Statewide approval gives police chiefs in each city and town in the Commonwealth the discretion to issue permits for businesses located in their municipalities to open for business prior to Noon on Columbus Day 2022 and 1 pm on Veterans Day 2022.
• Police chiefs are not required to grant permits for these holidays and, if they grant a permit, chiefs may impose reasonable terms and conditions appropriate to the nature of the business and the good of the community, at their discretion.

The permitting issue will require the employer to contact the local chief of police to investigate what process the chief of police’s office has established regarding permitting for these two holidays. The statute provides for a penalty of no more than $500 for a violation of the law.

Employers have several decisions to make. The first is whether to open on those two days. If so, reach out to your local chief of police as soon as possible to clarify what process if any exists in your city or town. Once you clarify that, you must determine whether you wish to apply for the exemption.