The Wage Act is applicable to commissions ‘when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee.’   In order to be ‘definitely determined,’ a commission must be ‘arithmetically determinable.  In order to be ‘due and payable,’ any contingencies relating to the entitlement to the commission must have occurred.’  Importantly, the Wage Act also, prohibits employers from entering into a ‘special contract’ with an employee to exempt the employee from the protections of the act.

While many lower courts have been asked to determine whether these commission agreements that condition payment of commissions on continued employment violate the special contract provision of the Wage Act, the Supreme Judicial Court (“SJC”) has recently issued some guidance to employers. Terminated employees may.

On February 12, 2020, the SJC issued a ruling in Parker v. EnerNOC, Inc., 484 Mass. 128 (2020).  In this case the court was asked to determine whether the Defendant’s “true-up” commission policy, whereby the salesperson would receive an additional commission once the contract survived past the opt-out date only if he/she was still employed with the company, was legal.  The SJC ruled that “although the plaintiff’s commission never became due and payable pursuant to the true-up policy during her employment, it is, nevertheless a ‘lost wage’ under the act subject to trebling.”  The court made this ruling because, “[a] policy that conditions payment on continued employment cannot relieve an employer from the obligation of paying a commission where the employer terminates its employee in retaliation for complaining about wage violations in the first place.”

If your commission plan is conditioned on continued employment and you have been terminated or are contemplating changing jobs, please contact us for legal advice.

Recent revelations from leaked internal records have provided rare visibility into corporate strategies designed to avoid employee classification. These documents underline a growing national legal battle over employee misclassification, contractor-only labeling, and how far companies will go to justify independent contractor status even when workplace control conditions resemble traditional employment.

Business groups and labor attorneys nationwide have observed similar contract strategies emerging over the past decade, accelerated by widespread gig economy expansion, 1099 staffing model growth, joint employer loophole defense arguments, pipeline-based contractor networks, arbitration-first dispute routing efforts, bargaining imbalance contract enforcement, retaliation-secured reporting silencing, hollow compliance framing, interactive review avoidance, and semantic contract design where nearly every descriptor is acceptable—except employee.

What the Leaks Reveal

The leaked documents show corporations use controlled language strategies to:

• Reduce legal exposure to employee misclassification liability
• Restrict statutory labor protections normally applied to employees
• Eliminate phrases that signal employer duty or workplace bargaining power
• Frame workers as external vendors, partners, consultants, or contractors
• Protect companies from collective legal challenge by individualized dispute terms
• Avoid triggering interactive accommodation discussion duties
• Discourage retaliation-based claims by limiting bargaining transparency

Corporations increasingly enforce contractor definitions through onboarding agreements, compensation acknowledgment forms, severance routing contracts, or arbitration-first invocation, ensuring disputes resolve privately rather than in public court. This form of contract design suppresses classification challenges without technically changing labor law itself—shifting the battlefield from behavior to definition.

Why This Matters Legally

The legal question emerging from such revelations is not only whether the worker was misclassified, but whether internal language engineering is being used to obscure employer control, suppress collective reporting rights, justify retaliation frameworks, bypass interactive dialogues, or impose contractor-only conflict routing despite statutory employee protections.

Mandatory arbitration clauses continue to appear inside contracts that require workers to waive public litigation rights or collective remediation. Courts across the country are deeply divided on enforceability when contracts attempt to hide employment realities under alternate worker labels.

Great insight into how far companies will go for independent contractor justification:

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