In many Chinese restaurants, workers are expected to work well beyond the standard 40-hour week. Can those employees then expect time-and-a-half overtime pay? 

No. But, then again, yes. 

Restaurants are among the businesses that have won an exemption from the Massachusetts law that requires most employers to pay workers not only a $10-an-hour minimum wage but also time-and-a-half pay ($15 per hour) for work beyond the standard 40-hour work week.

For a worker toiling 72 hours a week cooking food or washing dishes, the lack of overtime protection could mean the difference between a $720 paycheck and one that, with overtime, rises to $880. 

“When I came here I was really surprised,” Carlos Matos, the U.S. Department of Labor’s director of the Boston Wage and Hour Division, said of the state exemption. “I guess the lobbying must be really powerful.”

The state’s overtime law exempts 20 types of workers, including farmhands, fishermen and truck drivers. Labor officials, attorneys and activists said the exemption endures because of heavy lobbying.

“There have been attempts to restore overtime pay for restaurant workers through legislative means, but it’s just never happened,’” said Jocelyn Jones, a Northampton labor attorney who spent eight years as head of the Attorney General’s Fair Labor Division before moving to Northampton. “Workers in kitchens work so many hours, so there’s no reason they shouldn’t be compensated the same way others are who work long hours.”

Officials say most of them should be, due to federal regulations that supercede state ones. 

Under the federal Fair Labor Standards Act, restaurants grossing $500,000 a year or more in sales are required to pay overtime, along with any business that sells goods across state lines. Due to the interstate commerce provision, any restaurant employee who handles credit cards is covered, regardless of the business’ income.

“That exchange of (credit card) information is interstate commerce, so that individual is covered,” said Matos.

Stephen Clark, director of government of affairs for the Massachusetts Restaurant Association, said it always advises restaurants to pay overtime due to the federal requirements. He said, “I couldn’t name a restaurant” that isn’t subject to the overtime requirement. 

If a restaurant fails to pay the required overtime, federal law allows labor officials to levy a penalty of two to three years in back wages, according to the U.S. Department of Labor.  (The federal protection doesn’t put $15-an-hour in the pocket of a waiter or other tipped worker, however. Federal regulations stipulate only $9.88 an hour for overtime — below the state’s standard minimum wage.)  

While Massachusetts Senate President Stanley C. Rosenberg declined to comment specifically on the exemption for restaurants under state law, the Amherst Democrat pointed out that workers are sometimes made vulnerable through arbitrary delineations.

“Everybody's got to pay their bills, everybody’s got to feed themselves and they've got to be able to support their families,”  he told the Gazette. “If they’re not lucky enough to get a job in bucket A and they end up in bucket B, their standard of living is going to be lower.”

 

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