If the solutions were easy, there wouldn’t be problems. Join us as we look at issues facing Great Barrington and discuss the complexities, the competing interests, the less obvious costs or consequences, and the missing information that explains why It’s Not That Simple.
We both serve on elected boards in Great Barrington, but we are not representing those boards or the town.
This column is a companion to the WSBS (860 AM, 94.1 FM) radio show, It’s Not That Simple, on the air every other Friday at 9:05 a.m. Listen to the podcast here.
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An article in The Berkshire Edge last week informed readers that Theory Wellness had agreed to pay $300,000 in back wages because they had failed “to pay the company’s employees premium pay for hours worked on Sundays and covered holidays.” This was not a marijuana-related story, nor an isolated incident.
In March of this year, a grocery store in Boston agreed to pay $183,800 in back wages. Just last May, three grocery stores paid nearly $1 million in back pay. In both cases it was premium pay that was the issue. Premium pay is one of the remnants of Massachusetts’ blue laws, Colonial-era legislation designed to preserve the Sabbath by prohibiting most work and commerce.
Do we still have blue laws? Not according to The New York Times (March 27, 1983), which wrote:
“Sunday sales in Massachusetts have been a risky enterprise since 1648, when elders of the Massachusetts Bay Colony declared, ‘Whoever shall prophane the Lord’s Day by doing any servill worke should be fined or whipped.’
“This weekend, the heirs to that Puritan ethos can spend the Sabbath shopping for waterbeds, rock albums, and designer jeans. The so-called blue laws of Massachusetts are passing the way of the stocks and pillory.”
Not so fast. While it is true that, as of 1983, Massachusetts shoppers could buy waterbeds, and presumably leg warmers and Cabbage Patch dolls on Sunday, that was not the end of our blue laws. Blue laws are alive and well, and sometimes even enforced in Massachusetts. According to Attorney General Maura Healey’s website:
“The Massachusetts Blue Laws control hours of operation for certain businesses and require some businesses to pay extra compensation (known as “premium pay”) on Sundays and some legal holidays. These laws are enforced by the Attorney General’s Office.”
It goes on. And on. And on, with links to relevant laws, three categories of holidays, each with different rules, and 55 types of businesses which are exempt from some, but not all blue laws. They can be complicated and obscure, so it is not surprising that some businesses have unintentionally run afoul of them.
What are blue laws? No one really knows where the term comes from. It has been written so many times that these laws were initially printed on blue paper, that many sources cite this as fact despite a complete lack of evidence. More colorful theories relate to a 17th century meaning of the word blue as a disparaging description of something or someone prudish. Another etymology guess involves “bluenose,” a term for a rigidly moral person.
Blue laws were around in the 13th century in England and crossed the Atlantic with English settlers. The Virginia Colony enacted the first blue laws here in 1610, based on the biblical commandments to observe the sabbath as a day of rest. Massachusetts had them when it was a colony and they remained laws as a state.
In addition to prohibiting work and commerce on Sundays, many other “unseemly” activities were also prohibited such as hunting, gambling, drinking, housework, travel, wearing lacy clothing, and eating peanuts in church. Church attendance was mandatory.
Most of these behavior prohibitions have ended, but bans on work, commerce, and alcohol sales continue to this day.
By now we’re sure you’re thinking that laws designed to protect a doctrine of one particular religion are an obvious violation of the establishment clause of the First Amendment. Not all religions, not even all Christians, observe Sunday as a day of rest. Although court challenges were frequent, it took until 1961 for the Supreme Court to weigh in.
In McGowan v. Maryland, the Court ruled that laws with religious origins are constitutional if they serve a current secular purpose. In this case, the law in question referred to Sunday as “the Lord’s day” so there was no doubt about the initial intent. But over time, the court said, the laws had the legitimate secular aim of providing a day of rest and family time.
A little later in the year, the court again defended Sunday laws, in Gallagher v. Crown Kosher Supermarket of Massachusetts, when it upheld the Springfield police raid, arrest, and fine of the owner of a kosher deli which was open on Sunday. The deli owner said that his economic survival depended on Sunday sales, fully ⅓ of his total weekly sales, since he was closed on Saturdays in observance of his religion’s sabbath. Although three justices dissented, saying “Massachusetts has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival,” the 6–3 decision reaffirmed the Court’s position.
And so it stood until 1983, when Massachusetts opened up, sort of. Although retail was allowed to open, many other businesses were, and remain, forced to close on Sundays and holidays. Additionally, to protect workers whose employers were now allowed to open on Sundays, the legislature imposed two conditions: premium pay (a mandatory addition to an employee’s regular pay) and voluntariness of employment which requires an employee’s consent to work, and a protection from retaliation if he/she refuses.
Sales of alcohol are a separate matter altogether. In 1990, Massachusetts permitted liquor stores to open on Sundays at noon, but only between Thanksgiving and New Year’s Day. An exception was made, and stores were allowed to remain open Sundays year-round if they were within 10 miles of the New Hampshire or Vermont border. Presumably, whatever harm emanates from being able to purchase alcohol on Sundays is kept at bay near Christmas and Vermont.
In 2004, Massachusetts’ non-drinking Governor Mitt Romney allowed year-round Sunday sales after noon. That restriction was changed to 10 a.m. in 2014.
The most recent change to the blue laws was in 2018. As part of the law that increases the state minimum wage in steps, to $15/hr by January 2023, premium pay for Sundays and holidays is reduced to zero, in steps, over the same time period.
So, just what are the Sunday and holiday rules in Massachusetts? We hesitate to tell you, since they’re confusing. We aren’t lawyers or employers. Please, please check with an employment attorney or some other expert, or contact the Attorney General’s office. Also contact the AG if you believe you are entitled to premium pay.
The following is from the Attorney General’s web page on Blue Laws. We are including it here to give an idea of the complexity of the rules. Direct quotes are italicized.
- Retail can be open. Certain retail establishments that operate on Sundays are subject to the following two restrictions: Premium Pay and Voluntariness of Employment. Businesses with fewer than 7 employees are exempt from the premium pay requirement.
- Generally, non-retail businesses cannot operate on Sundays, unless they fall within one of the 55 exemptions.
- Generally, manufacturers are prohibited from opening Sundays without a permit. Additionally, manufacturers may petition the attorney general for a temporary exemption from the Day Of Rest laws. (“Day Of Rest” are AG Healey’s words, not ours.)
- Holidays? There are three categories: unrestricted, partially restricted, and restricted. There are different rules for retail, non-retail, and manufacturing for each of these categories of holidays, both with respect to opening at all, and the rate of premium pay. Good luck.
Finally, here’s our favorite:
- However, for all businesses, a permit for work on Sundays may be issued by the police chief of the city or town where the business is located. A permit from the police?!? Yes. For some reason, some businesses can get permission to open on some days that are usually not allowed, if they get a permit from the police. What are the criteria the police use to decide who gets or doesn’t get a permit? “…upon reasonable terms and conditions may issue a permit for the performance on Sunday of necessary work or labor which could not be performed on any other day without serious suffering, loss, damage or public inconvenience.” Now you know.
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Is there an issue you’d like us to discuss on the show? Do you have comments about this or previous shows? We invite your suggestions of topics that may be of interest and that might seem simple to address. Maybe there IS an obvious solution we haven’t thought of, or maybe It’s Not That Simple.
Email your suggestions or questions to NotThatSimple528@gmail.com, or find us on Facebook.
Listen to our show on WSBS (860AM, 94.1FM) every other Friday at 9:05 a.m. Our next show will be Friday, Sept. 17.
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It's Not That Simple: The blues in Masschusetts - theberkshireedge.com
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