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How Do the Overtime Laws Affect Employees Paid on Commission?

If you do not fall into one of the federal or state exemptions to overtime, you should be paid time and a half for all hours worked in excess of 40 each week, even if you are paid solely or primarily on a commission basis.

In the past, employers had argued that commissions earned on top of base wages could be credited toward this overtime requirement.  In other words, if you were paid $15.00 an hour, worked 50 hours in a week, and earned commissions at least equal to $225 (time and a half for the additional ten hours), you were not required to be paid the increased hourly rate for those ten hours as well.

A 2019 decision by the Massachusetts Supreme Judicial Court, however, changed this calculus.  The court held that commissions could not be credited toward the time and a half requirement.  This means in the above example you should have been paid an additional $7.50 for each of the ten overtime hours, in addition to your earned commissions.

The court also made clear that in all events employees must earn at least 1.5 times the minimum wage for hours over forty, regardless of commissions.  This would mean if you were a commission only employee you must earn at least $14.25 an hour for the first 40 hours in a week, and $21.37 per hour for hours over forty ($15.00 and $22.5, respectively, in 2023 when the minimum wage increases again).


Learn more here about overtime laws.

Need Help With a Commission Payment Issue?

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  • Home
  • Employment Law
    • Guide To Employment Law Content
    • Advice for Employers
    • Employment Contracts in Massachusetts
    • Discrimination in the Workplace
    • Employment Termination >
      • Massachusetts Paid Family Leave
      • Severance Pay
      • Unemployment in Massachusetts
      • Should I Accept a Severance?
    • Sexual Harassment at Work >
      • Sexual Harassment in a Small Business
      • Sexual Harassment and Non Disclosure Agreements
      • Sexual Harassment and Remote Work
    • Wage and Hour Laws >
      • Overtime Law >
        • Overtime Exemptions
        • Employee Travel Time
        • Federal or State Overtime Law
      • Massachusetts Wage Act >
        • Payment of Commissions
        • Wage Deductions
        • Late Payment of Wages
        • Paid Time Off
    • Independent Contractor Law >
      • Independent Contractor Test
      • Working As Independent Contractor
      • Hiring Independent Contractors in Massachusetts
      • Is My Independent Contractor Status Legal?
    • Non Compete Agreements >
      • Are non competes enforceable
      • Massachusetts Non Compete Act
      • Pre 2018 Massachusetts Non Competes
      • Can I Avoid My Non Compete?
    • Do I Have a Case?
  • Estate Planning
    • Guide To Estate Planning Content
    • Legacy Protection
    • Why You Need an Estate Plan
    • Why You Don't Have an Estate Plan
    • Estate Planning Documents >
      • Children with Special Needs
    • Planning for Assisted Living
    • Probate Process
  • Business Law
    • Guide To Business Law Content
    • Small Business Law
    • Business Contract Basics
    • Civil Suit Defense
    • Legal Issues for Start Ups
    • Trademark Basics
    • How to Incorporate
    • Sale of Business
  • About
    • Reviews
    • Slnlaw Offices
    • slnlaw core values
    • Publications and Interviews
    • New Client Intake and Consultation
    • Contact
  • Attorneys
    • Emily Smith-Lee >
      • 2018 Lawyer of the Year
    • Jenna Ordway
    • Rebecca Rogers
    • Sharleen Tinnin
    • Elijah Bresley
  • Legal FAQs
    • Estate Planning FAQs
    • Probate FAQs
    • Small Business FAQs
    • Wage Act FAQs
    • Commission Pay FAQs
    • Overtime FAQs
    • Independent Contractor FAQs
    • Non Compete FAQs
    • Employment Discrimination FAQs
    • Employment Termination FAQs
    • Massachusettts Unemployment FAQs
    • Severance Package FAQs
    • Medical Leave FAQs
    • Sexual Harassment FAQs
    • Employer FAQs
    • Civil Lawsuit FAQs
  • Blog