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.

On December 2, 2019, the First Circuit Court of Appeals ruled that au pairs, like any other domestic worker, are protected by the Massachusetts Wage and Hour Laws.  In Capron v. Office of the AG of Mass., 944 F.3d 9, 12-13 (1st Cir. 2019), the Court was asked by Cultural Care, a DOS-approved private placement agency based in Massachusetts, to issue a ruling that the “Au Pair Program” preempts Massachusetts from requiring host families to comply with its wage and hour laws.  The Court, however, declined to do so ruling that while the relevant DOS regulations set a federal regulatory floor on au pair participant wage and hour protections, they do not set a ceiling that limits the wage and hour protections that states may provide to au pair participants.  The Court held that from the text of the DOS regulations applicable to the Au Pair Program, “all one can tell….[is] the Au Pair Program operates parallel to, rather than in place of, state employment laws that concern wages and hours and that protect domestic workers generally, at least with respect to the obligations that such state law wage and hour measures impose on host families to do more than what the FLSA itself requires.”

If you are a participant in the Au Pair Program and you believe that you are not being paid in compliance with the Massachusetts Wage and Hour Laws, please contact us for legal advice. Au pairs areprotected.

au pairs areprotected

An interesting question arose recently. Is an employee who settles a case under the Wage Act still entitled to an award of attorney’s fees?

On February 19, 2019,  the Massachusetts Supreme Judicial Court (“SJC”) ruled so, that employees who settle cases brought pursuant to the Massachusetts Wage Act (“Wage Act”) are indeed entitled to recover their attorneys’ fees, unless those are made part of the settlement.

In Ferman v. Sturgis Cleaners, Inc., 481 Mass. 488 (2019), the Plaintiffs filed suit against the Defendant, alleging that the Defendant failed to pay them approximately $28,000 in unpaid wages. On the eve of trial, the parties participated in a mediation that resulted in an agreement to settle the case for $20,500. Importantly, however, the parties reserved the issue of the Plaintiffs’ entitlement to attorneys’ fees for resolution by the Court. The Defendants argued that the Plaintiffs did not prevail, as required by the Wage Act, because they did not obtain judicial approval of the private settlement. The Plaintiffs, however, argued that the Court must apply the “catalyst test,”  whereby a Plaintiff may qualify as a prevailing party under the Wage Act if the “lawsuit is a necessary and important factor in causing the defendant to grant a material portion of the requested relief, a settlement agreement.” Employees who settle cases

The SJC held that the catalyst test applies in the context of determining prevailing parties under the Wage Act, because it promotes the two major purposes of a statutory fee-shifting provision: 1) to act as a powerful disincentive against unlawful conduct; and 2) to provide representation in cases that otherwise would not be financially prudent for an attorney to take on. “The catalyst test thus recognizes that successful litigation may be reflected in settlements as well as court rulings, as settlements are often ‘the products of pressure exerted by [a] lawsuit.’”

As a result, the SJC affirmed that the Plaintiffs were entitled to recover approximately $16,000 in attorneys fees and $1,000 in costs, in addition to the amount they received from their settlement. While attorneys’ fees are often negotiated privately during a settlement, Ferman provides a roadmap for seeking judicial intervention if the amount owed to the attorneys is the only impediment to settlement.

If you’re finding it hard to get paid your wages, let us know. We may be able to help.

Significantly, an employee who has not been paid minimum wage can now recover attorneys’ fees in addition to the unpaid wages and costs. Employers are now also subject to a recordkeeping requirement and employees are allowed access to these records.

Furthermore, under the old law, employees were required to make a complaint within 60 days if they were not paid their wages. However, from January 1, 2015, employees have two years to file a complaint and wages can be recovered from the date the wages were owed. In addition, the CDLE now have the power to fine employers if they do not pay all earned wages.

If you have any questions about the wage laws in Colorado or in your state, please contact us today.

PerkettPR, a public relations firm, hired Fraelick in 2007, and her contract offered her compensation for business costs including telephone fees, laptop, office supplies, travel and other expenses. By 2009, PerkettPR began failing to cover Fraelick’s business expenses, a situation that continued over the next two years. When Fraelick ultimately refused to fly to Georgia for business due to the mounting unpaid expenses, PerkettPR soon delivered a check to Fraelick for the outstanding expenses and promptly retaliated by firing her three days later for her “unwillingness to pay expenses without receiving timely reimbursement.”

The SJC ruled that by forcing Fraelick to pay expenses – especially when PerkettPR was contractually bound to pay those expenses – PerkettPR effectively reduced the employee’s wages. Thus, the SJC ruled business expenses can be covered by the Wage Act, and failure to pay those expenses might entitle an employee to triple damages.

If you believe that you are in a similar situation, call us to learn about your rights.

The Company Defense Failed

The brand argued plan discretion made commissions uncertain. Instead of checking sales facts, it tried to block payment. But courts ask one core question: Did the worker earn the money already? If the answer is yes, the law protects that pay.

McAleer Case Facts

On July 24, 2009, Mr. McAleer lost his job. By that date, he had finished pipeline sales. Normally, the company issued payouts months later. Still, the brand denied every earned sum, not only late payouts.

What the Court Confirmed

The court rejected the company’s argument clearly. Judges explained an important rule. Employers may hold discretion to check facts, confirm eligibility, and verify math. However, they cannot use discretion to block earned wages. Furthermore, the court noted that a plan must give total freedom to award commissions or not, if an employer wants to avoid wage liability. This plan did not grant that power. So, the law protected the worker’s earnings.
✅ Employers can check facts and math
✅ They may confirm eligibility rules
❌ They cannot cancel earned commissions already approved by sales progress

Why This Ruling Matters

This decision protects commission income many families rely on. Missed pay raises stress and breaks financial planning. Reliable wage laws defend earnings workers generate through real sales work. Courts now look deeper, beyond plan clauses, to ensure fair pay systems protect workers.

Quick Test for Commission Drivers and Sales Staff

• Did you finish and get approval for your sales?
• Does the brand track or judge your daily performance?
• Do you follow company rules, territory plans, or pay policies?
• Did the company deny all earned commissions?
If most answers are yes, you likely qualify for employee wage rights instead of contractor exclusions.

Steps Workers Can Take

• Request a pay and commission audit early
• Check plan math and sales approval records
• Get legal advice fast if a company cancels earned pay
• Document discipline, performance reviews, and job control methods
• Ask if wage rules applied to your payout timeline

Final Takeaway

In short, earned commissions are wages. A company cannot block pay you already earned using limited wording about discretion. Fair pay rules stabilize communities and protect weekly income. Acting early, therefore, helps workers avoid financial harm and build long-term income security.

The lower court ruled that because Mr. Dixon received more money than he was owed, he should not receive any additional compensation. The court denied him his vacation money, litigation costs, and attorney fees. The Supreme Judicial Court overruled the decision.

According to the Wage Act, unpaid wages (including holidays) must be paid in full, and the employee must be told what the payments are for. Mr. Dixon was still receiving normal pay checks for fifty days, but these were not vacation payments. The SJC ruled that because the city failed to be specific, they violated the Wage Act. An employee would not be on notice that the unlabelled payments were for vacation and not some other amount due. The fact that the SJC overruled the decision shows that even favorable after-the-fact payments may not be enough and that an employee is entitled to all of their earned wages, promptly, explicitly, and without settlement.

If you have experienced something similar, please call us to learn about your rights.

The decision made it clear: When vacation is earned, it must be paid out. The ruling confirmed this in the case filed by the Massachusetts Attorney General.

What Happened in the Case?

• EDS said vacation does not accrue and is not earned.
• Its policy blocked any payout if an employee left the company.
• Francis Tessicini was fired after using 1 of his 5 vacation days.
• The company refused to pay him for the 4 unused, earned days.
• Mr. Tessicini filed a complaint. The Attorney General supported him.

The Unlawful Vacation Policy

EDS’s policy stated:

“Vacation time is not earned and does not accrue. If you leave EDS, you will not be paid unused vacation time.”

The court rejected this argument. It confirmed that service-based vacation benefits count as wages, and they cannot be forfeited due to employment status changes.

Massachusetts Wage Act Backs Earned Vacation Rights

The law states:

• Vacation pay falls under the legal definition of wages.
• Fired employees must receive full pay for vacation on their last working day.
• No contract can remove a worker’s right to the earned vacation payout.

The court sided with the Attorney General’s interpretation, protecting employees from forfeiture clauses or clever policy loopholes.

Why This Ruling Matters for Compensation and Worker Rights

Without this decision:

🚫 Companies could add policies that void earned vacation payouts.
🚫 Wage protections under the Massachusetts Wage Act could be weakened.
🚫 Other earned wages – like commissions – could be targeted next.

This decision closes that door. It warns employers not to misuse vacation clauses as a tool to cut payouts from compensation packages.

Amicus Support from Employment Law Experts

Philip Gordon filed an amicus brief supporting earned vacation payout rights. He submitted it through the Massachusetts chapter of National Employment Lawyers Association. It backed the Attorney General’s position and highlighted the larger compensation risks for workers.

His involvement reaffirmed a national trend: Vacation pay earned through service is protected compensation, not a privilege to cancel through policy.

In an effort to reduce their expenses some employers take their needs to an extreme, asking employees to work for free, accruing wages on the company’s books until enough money comes in to make wages a priority. Some employers even ask employees to sign contracts agreeing to this practice.

The Wage Act, however, is clear. “No person shall be a special contract with an employee or by any other means exempt himself from the section.”

In Stanton v. Lighthouse Financial Services Inc., the Federal District Court in Massachusetts faced such a situation. John Stanton founded a company and served as its President. At some point, the company’s Board of Directors decided to stop paying his salary, invoking the terms of his written employment contract. Stanton worked for Lighthouse for over a year under this arrangement, but when things turned sour, he sued.

Judge Nancy Gertner agreed with Stanton. The Court found Stanton was an “employee” under the Wage Act, that Stanton’s salary was a “wage” under the Wage Act, and that the “deferral agreement in Stanton’s employment contract is void as a matter of law.”

There is no dispute that Stanton was never paid for his work at Lighthouse. And there is no dispute that the “no special contracts” provision of the Wage Act protects employees from just such a situation.

Why This Burden Is Unfair

Employers often hold most payroll data, staff records, and internal communications. This makes willfulness harder to prove. Especially for single workers, evidence gathering costs time and money. Still, many workers rely on these legal tools to recover unpaid pay. This bill could weaken those protections. It risks limiting fair recovery. It also discourages workers from filing claims. Financial barriers already stop many workers from entering long cases. Proving willfulness raises costs even more.

Legal Costs Become a Second Hurdle

The bill adds another challenge. It makes attorney fee awards discretionary unless workers prove willfulness. Even when workers clearly show unpaid wage evidence, they still might pay legal costs themselves. This can bury small wage claims fast. It hurts low-income families the most. Without cost support safety nets, small claims don’t get legal champions often.

Who Supports Workers Today

The Massachusetts Legislature sets wage laws and updates labor rules. Worker groups, attorneys, and public interest voices track these proposed changes. They push for fair recovery tools that more workers can access. Most importantly, they aim to block cost shifting that penalizes workers unjustly. Wage theft harms families and workplace morale. So, fair recovery tools remain vital.

Why Triple Damages Matter

Treble damages help workers recover wages faster. They add penalties that motivate settlements. Without that leverage, companies might stall payouts. They might gamble on weak single claims. This bill could reduce settlement incentives. It makes wage audits, depositions, and document demands even tougher. While big firms handle long litigation costs, single workers struggle.

Who Will Be Most Affected

• Warehouse workers
• Delivery drivers
• Retail staff
• Part-time service workers
• Shift-based healthcare workers
  The damage risk rises for workers serving hands-on, core business tasks. These jobs depend on hourly work data and strict company guidelines.

What Workers Should Ask Themselves

Consider this quick check before moving forward:

• Does the company set your shift rules?
• Do managers score your performance?
• Do they control your HR and payroll process?
• Do you perform their essential business duties?
• Did you pay job costs they should cover?
  If many answers are yes, you likely work inside the firm’s main business role.

Why Families Should Care

Worker pay stability protects rent planning, medical access, childcare budgets, and weekly household needs. When companies block fair damage claims, settlement pressure drops. This creates imbalance. It could widen wage inequality.

What Happened in Court

Later, the Supreme Judicial Court of Massachusetts overturned multiple lower court decisions. It also reversed summary judgment on several worker pay issues. In the case, workers said Wal-Mart cut, denied, or weakened meal and rest breaks. They also said the company avoided paying for off-the-clock hours.

Why the Class Action Was Restored

Importantly, the court reviewed the Rule 23(b) “predominance” test. Still, the court said early proof should be reasonable. Not perfect. Also, the court noted Wal-Mart applied the same break rules to hourly staff. This included grill workers, cashiers, receivers, and many others. So, shared policies confirmed common worker impact. Therefore, the trial court should not have blocked class certification.

What Dell Tried – What Wal-Mart Did Here

Unlike Dell-style small arbitration waivers, this case focused on class certification. Still, Wal-Mart used broad shared rules too. In other cases, wording shields harm. Here, common policies proved group impact. So, grouped claims made sense.

CEO-Level Proof Not Needed at Pre-Trial

Next, the court clarified a key point:
Workers only need enough facts for a reasonable pretrial decision.
They don’t need full proof at this stage. In short, the judge only checks feasibility. Not final guilt. So, pre-trial evidence must show the claim is logical. Useful. Not fully proven.

Do Meal and Rest Breaks Have Value?

Interestingly, the lower court said unpaid meal breaks equal no losses. The state high court rejected that idea. It said unpaid does not mean worthless. The court also ruled judges cannot set meal value to zero by default. Meal breaks protect worker health and daily spending. So, economic value exists beyond hourly wages.

Key Takeaways for Workers

• Class actions move forward when company policies hit workers the same way
• Pre-trial proof only needs reasonable clarity, not final evidence
• Judges must treat meal and rest breaks as valuable time
• Unpaid breaks still carry economic and personal worth

When a Case Like This Gains Strength

• The company uses identical break policy
• Many workers face the same burden
• Claims work better in groups, not solo fights
• Courts test fairness, pattern, and logic
  If these signals appear, a class action stands strong.

Final Word

In short, meal and rest breaks hold economic meaning. Employers can’t hide behind policy wording. Also, shared harm invites grouped claims. Courts now test logic, fairness, and impact. Not excuses.

Why the Clarification Is Necessary

Companies know pay rates, schedules, and due dates because management sets them. Still, businesses sometimes delay payroll when no penalty pushes them to act fast. Unfortunately, this hurts workers and honest competitors. However, this update shifts the balance. Now, it gives workers stronger legal recovery leverage. It also discourages payroll stalling tactics.

What the New Standard Fixes

In the past, employees faced long evidence battles. They also struggled to prove employer intent. Still, leadership groups pushed for fair recovery. The Massachusetts Legislature and the Massachusetts Commission Against Discrimination tracked wage violations. Local labor attorneys also escalated classification cases based on shared company control, HR systems, and schedule authority. This clarification ended the confusion. It removed the need to prove evil motives or reckless intent. Because of this, workers can reclaim wages without facing impossible intent barriers.

Triple Damages Drive Fairer Settlement Pressure

Triple damages now count as liquidated damages. Importantly, the law ties them directly to unpaid wage amounts. This tool motivates companies to settle fully and faster. Without this pressure, firms could delay, underbid rivals, and later pay the same wage amount late. Hence, penalties now change that incentive. The goal is compensation, not revenge. This restores fair pay value, damage recovery, and settlement motivation.

Family Income Stability Now Gets Clear Legal Support

Most working families budget weekly. So, predictable income protects rent, meals, healthcare, school fees, and transport. However, missed payroll fractures this stability. At times, one delayed paycheck causes cascading debt timing risks. Therefore, this update supports a safer financial safety net. It protects where it matters most—in the home.

Why Courts Shift Toward Hourly Recovery & Employee Control-Based Claims

Courts evaluate classification issues based on direction and operational control. Employee status grows clear when firms:

• Set mandatory shifts
• Score worker performance
• Enforce discipline
• Control HR, payroll, or data records
• Depend fully on worker labor to run core operations
• In contrast, independent status applies when workers genuinely operate a separate trade or client list without firm-wide discipline.

The Hon. Deval Patrick, Governor
Office of the Governor
State House
Boston, MA 02133

RE: Effort to Clarify the Massachusetts Wage Act

Dear Governor Patrick:

I wrote to you in December 2006, as you were assembling your transition team, about a piece of bi-partisan legislation that passed both the House and Senate without objection and had been vetoed by Governor Romney in his final days in office. The bill garnered unanimous support in the Legislature, and the Governor’s veto would likely have been overridden had the bill not been enacted during informal legislative session under rules that preclude veto overrides.

The good news is that the House and Senate have enacted the exact same piece of legislation again, and it is finally on your desk. The legislation is S.1059. It is important legislation – important to our workers, who depend upon their wages, important to the state, which depends upon the tax withholdings, and important to our businesses, which depend on an environment without competition from other businesses who neglect to pay their employees. It is the reason for this letter.

Failure to pay employees their earned wages in a timely manner is a serious problem. It injures employees, undermines our competitive economy and deprives the Commonwealth of revenue. It is an act with serious consequences, especially for employees, and it warrants triple damages.

Employers hire their employees, set the wage rates, set the hours and know when wages are due. Without mandatory triple damages, irresponsible employers can delay payroll, leave their employees without needed paychecks, underbid honest competitors, damage the Commonwealth’s support systems and then pay single wages late, without any compensation to employees for their losses.

Some might say that automatic treble damages are punitive in nature and should not be imposed on companies who make “honest” mistakes. But, this mischaracterizes the legislation. Treble damages are not punitive in nature. They are liquidated damages. They are not intended to punish, but rather they are tied strictly to the wage itself and intended to compensate employees for their losses.

As you know, punitive damages are determined by focusing on the company. They are meant to punish the corporation. But this form of treble damages are focused on the employee and tied strictly to the actual unpaid wage amount, an amount roughly determined to compensate an employee for her losses.

As for the concept of “honest” mistake, this too mischaracterizes the intent of this legislation. Employees suffer greatly without their wages. One can only recover treble damages after going through a process of filing a complaint with the Attorney General, waiting up to 90 days, then filing a case in court and proving that the employer failed to pay wages. Only then, would an employee be entitled to treble damages, and only for those wages she could prove were still due. Most, if not all, “honest” mistakes would be cleared up long before then. So, the term honest mistake really means careless employer, and no employee should suffer the damages of such carelessness without compensation.

For those who propose amending the statute to change the standard from “evil intent or reckless indifference,” to “willful,” they too miss the point of this legislation. “Willful” failure to pay wages is a crime punishable by imprisonment and fines under MGL c. 149, §27C. The pending legislation is not criminal legislation, rather it is designed to compensate employees for their loss.

The pending legislation ensures proper interpretation and application of the Wage Act so that employees, employers and the Commonwealth are protected. It seeks to undo a recent decision by the Supreme Judicial Court which constricted the original intent of the legislature and made triple damages discretionary. Wiedmann v. The Bradford Group, Inc., et al., 444 Mass. 698, 709-710 (2005).

Since the passage of the private right of action for wage violations, and the addition in 1993 of the “including treble damages” language (M.G.L., c. 149, § 150), as well as the introduction of criminal penalties for non-payment of wages, (M.G.L., c. 149, § 27C), the Massachusetts Legislature has impressed upon employers that failures to pay wages will be taken seriously. The intent was to keep regular wage payments from turning into negotiated events and to compensate employees for their losses in those cases. Thus, if a company failed to pay an employee, the employee could sue under the Wage Act and recover triple damages, costs and attorneys fees, and most courts held such damages to be mandatory. However, in 2005, the Supreme Judicial Court in Wiedmann disagreed, and interpreted the Wage Act as requiring the employee to show that the employer’s failure was “outrageous, because of the [employer’s] evil motive or his reckless indifference to the rights of others.” A tough burden.

S.1059 seeks to restore the original intent of the legislature.

To understand the need for this legislation, speak to our working class families. Many often live pay check to pay check, and are devastated when their earned wages are withheld. Careless or irresponsible employers who promise but fail to pay wages, undermine the ability to pay rent, student loans, taxes, health insurance premiums, medical care, tuition, car payments and groceries – for which anything less than multiple damages could never compensate. Such non-payment also creates a ripple effect throughout each family’s economic health and through the commercial entities which rely on promised payments.

Moreover, there simply is no excuse to justify the far reaching effects of missed payrolls with the institution of payroll services, easy to use computer programs, accountants and plenty of other ways to make sure employers never miss payments – many of the same systems that ensure proper withholdings for state and federal tax payments. In recognition of this, the Legislature has long given working people the right to timely payment of wages, and until Wiedmann, the law provided strong protections to compensate employees for those losses and motivated employers to make timely payments.

The SJC’s ruling in the Wiedmann case weakened the Wage Act to the detriment of all. Despite the fact that the Wage Act’s damage provision is tied strictly to the actual wages due, the SJC nevertheless created a giant loophole for unscrupulous employers to legally avoid paying their employees. This imposes a chilling effect on individuals who now find it difficult to engage an attorney to represent them through the SJC’s new “intent” hurdle – exactly the group of workers the statute was designed to protect. Employers now simply use their spending power on attorneys hired to create doubt and argue “innocent” intent, while dragging a case on for years and making it extremely difficult for an employee to recover or to even hire an attorney at the outset to represent them.

The Wiedmann decision also subverts the marketplace. Up until the SJC ruling, the vast majority of judges interpreted the statute to require mandatory treble damages, and during the decade plus years the law was in effect, there was no outcry from the general business community or from employers who were found at fault for not paying their employees. That was simply because the vast majority of employers treat their employees fairly and pay their employees all amounts due on time, both because of the law and because employers recognize the importance of employee retention. Thus, it was only those employers who repeatedly violated the rights of employees, created climates of distrust and refused to provide redress, who found themselves subject to the provisions of the statute.

S.1059 is also a natural and important extension of the General Court’s recent focus on wages, health care and corporate tax loopholes, because the bill serves to enforce provisions of the law that guarantee that every worker in Massachusetts (minimum wage earners and beyond) be paid for their work.

Clarifying the Wage Act is beneficial to employers as well. When a company fails to pay its employees proper wages, it can utilize the illegal “savings” to underbid its competition or lower the costs of its products or services. Especially for small businesses, the ramifications from dishonest competition can be devastating, an unfair result to those businesses abiding by the law. This legislation squares with a concern raised by the business community that General Court set to address in the context of health care reform, namely that businesses (through higher premiums charged by insurers) and government (via the uncompensated care pool and Medicaid) were subsidizing employers who could, but didn’t provide health care to their employees. Thus, the legislation would similarly level the playing field for all businesses in Massachusetts by prohibiting businesses from using payroll funds to underbid their competitors in the marketplace. It is important to keep in mind that this proposed change in the law has no bearing on employers who follows the law and pay their employees when their wages are due- period.

It is for that reason that, in addition to having bipartisan support of members on the Labor and Workforce Development Committee, the bill had remained consistently unopposed by key business groups. These business organizations pride themselves on having members who value the importance of paying wages in full and on time and responsible business owners interested in a level playing field, where they won’t be underbid by unscrupulous competitors who fail to pay their employees. Although it is our understanding that some of these organizations have begun to wage a more concerted effort in opposition, none of these groups have testified openly before any of the committees that have considered the bill.

I appreciate the opportunity to call this effort to your attention and to be of any assistance that I can to both you and the rest of the Patrick-Murray administration. Of course, please let me know if you have any questions or comments. I look forward to working with you.

Very truly yours,

Philip J. Gordon

According to the plain language of the statute, the Massachusetts Wage Act applies “to the payment of 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 1991, the Massachusetts Appeals Court, in Commonwealth v. Savage, inferred “a Legislative purpose” to apply the commission section of the Massachusetts Wage Act to “employees who would ordinarily be paid on a weekly basis, such as retail salespeople, and for who commissions constitute a significant part of weekly income.”

The Okerman Court clarified the application of the Massachusetts Wage Act with regards to commissions. The Appeals Court held that the Massachusetts Wage Act applies to “executive, administrative or professional employees” and is “not dependent on the amount of an employee’s earnings.” Accordingly, the Massachusetts Wage Act applies to “both highly paid professionals and to lower income wage earners alike.”

It is now clear that all employees are entitled to recover their commissions under the Massachusetts Wage Act, provided that the commissions are “definitely determined” and “due and payable.”