Massachusetts Wage and Overtime Rights

The Massachusetts Weekly Payment of Wages Law (the "Wage Act") is the most important protection for employees' wages in Massachusetts. If your current or former employer has failed to pay you earned wages, including commissions and non-discretionary bonuses, and earned vacation, you can sue for three times the unpaid amount and your attorneys' fees.  This is true even if you've been wrongfully classified as an independent contractor, which is quite common in Massachusetts.

Here are a list of topics about the Wage Act discussed on this page.  Click a topic to go to the information, or just scroll down.  Feel free to suggest a new topic or question.

 What are "Wages"?
 Commissions and bonuses
 Timing of Wage Payments
 Docking Pay (and other involuntary deductions)
 Retaliation for Wage or Overtime Complaints
 Misclassification of Employees as Independent Contractors
 "Off-the-Clock" Work
 Overtime Issues
 Recovering Unpaid Wages in Massachusetts

What are Wages under the Wage Act?

The term "wages" includes salary, hourly pay, commissions, non-discretionary bonuses, vacation, and other forms of "pay."

Are Commissions Covered by the Massachusetts Wage Act?

The Massachusetts Wage Act applies to the payment of commissions when the amount of commission “has been definitely determined and has become due and payable.” Commission disputes are fairly common in Massachusetts. Although it used to be a hotly contested point, the Massachusetts courts (most recently, the Appeals Court in Okerman v. VA Software Corp.) have made it very clear that the Wage Act applies to all employment commissions as long as they meet the requirements of bring are "due and payable" and "definitely determined."

As the Supreme Judicial Court stated in the case of in Wiedmann v. The Bradford Group, Inc., 444 Mass. 698 (2005), a commission payment is definitely determined when it can be calculated arithmetically.  This requires that all of the mathematical factors needed to calculate the commission be known or knowable.

All commissions are based on contingencies, usually sales. Companies have the right to define when and under what circumstances commissions will be due and payable. If an employer is smart and careful, they will put this in writing and make sure all of the factors are very clear, including timing of payment.  If an employer is silent on commission terms, its actions, practices and course of dealing between the employer and employee (and sometimes other employees) will taken into account and used to determine what the "deal" was with respect to commissions.

The term “commission” is commonly understood to refer to compensation owed to those in the business of selling goods, services, or real estate, set typically as a percentage of the sales price. See, e.g., Webster's New Universal Unabridged Dictionary 364 (2d ed. 1983) (defining “commission” as “[a] percentage of the money taken in on sales, given as pay to a salesclerk or agent, usually in addition to salary or wages”). The compensation at issue here was of a different sort, a share of the overall profits generated by the development efforts. Whatever the precise boundary of the term “commission” as used in the Wage Act, we agree with the trial judge's conclusion that any money owed Suominen under such a profit-sharing arrangement was not a “commission” covered by the statute.
Suominen v. Goodman Indus. Equities Management Group, LLC, 78 Mass.App.Ct. 723, 738 (2011).  

Bonuses that are tied to definable metrics based on sales are also sometimes subject to the Wage Act.  However, this is a hot-button issue right now in Massachusetts, with the federal court sometimes construing the Supreme Judicial Court's Weems decision to mean that bonuses with any discretionary elements are not covered by the Wage Act.

Another hot-button issues is what happens when an employee is terminated or resigns before a commission (or bonus) is paid but after all or most of the factors that give rise to the commission (or bonus) have happened.  This depends on the facts, but has been some good case law on this point recently, notably McAleer v. Prudential Insurance Company of America.  We have handled several of these cases.  Feel free to contact us about your situation.

Related Blog Post: Bonuses and Commissions under the Wage Act
Related Blog Post: Are Bonuses Wages in Massachusetts?

When Should you be Paid Salary or Wages?

Your employer must pay your earned wages within six days after the end of a pay period (or within seven days if you have a seven-day workweek). A special rule requires that if you are terminated, you must be paid in full on your last day of work. This includes pay for unused vacation time.  However, if you resign you must be paid on the next payday.

Employees working in executive, administrative or professional capacities may be paid bi-weekly or semi-monthly.

Can an Employer make Involuntary Deductions from Wages?

In general, your employer cannot withhold payment of your full wages or make improper deductions from your wages. Usually the only deductions that are allowable besides taxes and FICA are voluntary deductions like insurance, union dues, retirement contributions and loan repayments.  Generally, involuntary deductions require a court order, like trustee process order (wage garnishment).

An employer cannot withhold wages for damages caused by employees or because an employee has not returned company equipment or materials.  In the latter instance, the employer can sue for the withheld materials, but they can't unilaterally judge the amount owed and withhold wages on that basis.

Related Blog Post: What is a “Valid Set-off” under the Massachusetts Wage Act?

What if I am Still Employed, I Have a Wage Claim, but I Don't Want to be Fired?

It is illegal to fire an employee for trying to get paid their wages. The law says "No employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter." See G.L. 149, s. 148A. That being said, your employer may still fire you or otherwise punish you for seeking your wages, but this would give rise to a retaliation lawsuit. The Supreme Judicial Court in Smith v. Winter Place, LLC held that even internal complaints (to a boss or manager leading to your dismissal) could form the basis of a retaliation claim.

Related Blog Post: Wage and Overtime Claims and Retaliation.

Misclassification of Employees as Independent Contractors

This is the hot area of wage and overtime litigation in Massachusetts. If an employer misclassifies an employee as a 1099 independent contractor, it can be liable for its share of employment taxes and other benefits deprived the worker due to the 1099 arrangement. It also can be liable to pay back overtime if the employee is not exempt and has worked more than 40 hours in a week.

All three of the following must be true for a person performing services in Massachusetts to be a valid independent contractor.

1. You are free from control and direction in connection with the performance of your work, both under any contract and in the reality of your job; and

2. Your work is performed outside the usual course of the business of your employer; and,

3. You are customarily engaged in an independently established trade, occupation, profession or business of the same nature as the work you so in your job.

Almost nobody with a job can be paid without getting a payroll check in Massachusetts. That means that if you have a job but you get paid without taxes being taken out of your check, you probably have a claim for money damages. What those damages will be depends on whether you have other unlawful deductions from your pay and whether businessexpenses are being shifted to you. However, almost everyone who is paid on a 1099 (no taxes being taken out of your check) will at least have a claim for the money in taxes that the employer isn't paying.

Also, if you are hurt on the job, your employer may be subject to penalties for failure to provide workers compensation insurance, and may be subject to a personal injury lawsuit by the employee.

Almost everybody who works and gets 1099s is misclassified as an independent contractors in Massachusetts.

Related Blog Post: Massachusetts Wage Claims for Misclassified Independent Contractors.

Getting Paid for Off-the-Clock Work

You must be paid for all your time worked if you are an hourly employee.  Here are some common violations of the Wage Act.

 Not being paid for time spent working through meal breaks;

 Working off the clock to meet deadlines (even your managers says you're not supposed to);

 Time working from home when you are an hourly employee and your employer knows about the work;

 Getting ready for work--putting on uniforms and equipment, taking off these items at the end of a shift;

 On call time when you cannot leave the job site or are not effectively free to use your time for your own purposes;

 Travel time during the day, like between job sites or from a site to the office;

 Rounding off time card entries in a way that benefits the employer.

 Unpaid training

What Should I Do to Recover Unpaid Wages in Massachusetts?

It depends on the situation, but it's smart to contact an attorney ASAP. The reason for this is that the law states that payment of wages after the filing of a complaint is not a defense to the case. If it weren't for this law, employers could simply hold off on paying you, then make you spend time and money chasing your payment, and finally make the payment with no additional expense. The law does not intend that result. The law provides that an employee will receive three times their unpaid wages and reasonable attorneys' fees and costs if the employee takes their case to court and wins. A law that became effective July 13, 2008 made triple damages mandatory if you win your case.

The Wage Act is designed so that normal people can afford an attorney to handle their case.  It is unnecessary and often foolish to handle a Wage Act case yourself because you cannot recover attorneys' fees without an attorney (even if you yourself happen to be a licensed Massachusetts attorney!).

We are Massachusetts attorneys representing individuals in unpaid wage and overtime cases.  If you think your employer owes you wages, send an email to describing your situation or call 617-338-9400.  When we take an unpaid wage or overtime case, our fees come from the defendant, not from you. 

Should I File a Wage Complaint with the Attorney General?

The Attorney General is given notice of all suits under the Wage Act.  We will do this for you if we take your case, so it makes sense to check in with us first.  In the vast majority of cases, the Attorney General complaint does not result in any money recovery for the employee, but it must be done to bring a claim under the Wage Act in court.  Only once you file in court, do you lock in triple damages: the employer gets notice of the matter and is required to pay treble damages and fees if you prevail in the case.  This creates strong incentive for the employer to settle the case on favorable terms.

Related Blog Post: Getting Help with an AG Wage Complaint.

Massachusetts Overtime Rights

Most employees working over 40 hours a week must be paid overtime.  Overtime pay is 1 ½ times an employee's regular rate of pay.  Just because someone is paid a salary does not mean they are not entitled to overtime.

There several exceptions (called "exemptions") under the Massachusetts Overtime Act and the federal Fair Labor Standards Act.  An important category of exemption exists for "bona fide" executives, professional, and administrative personnel. The key terms here is "bona fide." Workers are often misclassified.  Employers have a financial incentive to misclassify workers who are non-exempt (entitled to overtime) as exempt (not entitled to overtime).  The rules governing overtime exemptions are varied and complex, and there are very few hard and fast rules.  However, your job title does not decide if you get overtime.  There is a long history of employees calling employees "supervisors" and wrongfully not paying them overtime.  Just being a "supervisor" doesn't make you exempt, especially if you have no real managerial authority and even perhaps perform physical labor along side other workers.

But here are some technical details.... Exempt executive employees are those who are paid a salary not less than $455 per week, have as their primary duty to manage part of the business, regularly direct the work of two or more other employees, and have the authority to hire or fire other employees or have their recommendations about hiring, firing, and promotion of other employees taken very seriously by their bosses.

Exempt administrative employees are those who are paid a salary of at least $455 per week and whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.  I think the administrative exemption is the toughest one to figure out in the real world because it is so susceptible to multiple interpretations.  However, not all employees who work in offices and do "administrative" tasks are administrative employees for purposes of the exemption. See Kelli K. Goodrow vs. Lane Bryant, Inc., 432 Mass. 165, 170-1 (2000) (discussing bona fide executive test under Massachusetts and federal law).

There are many other overtime exemptions for specific types of employees in specific industries.  Examples include: certain computer and creative professionals, outside salespeople, fishermen, seamen, certain truck drivers, seasonal farm workers, people who work at very small newspapers, some mechanics at auto dealerships.  These are only some examples.

Many overtime cases involve the misclassification of workers as exempt employees, but other cases simply involve working off the clock.  A common example is when a worker is paid a salary "based on" a 40-hour week, but that employee works more that 40 hours per week and is not otherwise exempt from overtime pay. 

The same protections that exist against retaliation for unpaid wages exist for complaints about unpaid overtime.  In fact, under Massachusetts law if an employee complains of overtime violations and gets fired or otherwise discriminated against there is an minimum damage of one month pay.  If the employee who is fired is out of work or underemployed for longer, it is possible to sue for more retaliation damages.

The statute of limitations for overtime cases is generally two years, but under federal law can be three years if you can show that your employer willfully violated the overtime laws.

It can be hard to know if you should be getting overtime pay for overtime hours worked.  You can confidentially send an email to describing about your situation.  We will let you know if you have a case that we think is worth pursuing.  When we take on a wage or overtime case, we almost always do so on a contingent fee basis, which means that we do not charge any fees unless there is a successful settlement or judgment.