Question 1

What is the Wage Act?

Accepted Answer

The Massachusetts Wage Act is a statute that governs the timely payment of wages.  As repeatedly (and recently) recognized by Massachusetts courts, the Wage Act is intended “for the protection of employees, who are often dependent for their daily support upon the prompt payment of their wages."

The law, however, does not only apply to lower salary or hourly workers.  Courts have applied its requirements to highly compensated employees as well.

The Wage Act requires wages and salary to be paid within 6 days of the end of the prior pay period.  Wages include commissions as soon as they are earned under the employer's commission policy.  It also requires payment of all earned wages and accrued and unused vacation time at termination.

Employers and employees should pay careful attention to the requirements of the Wage Act.  If an employer does not pay what is owed or pays it late, they will be liable for three times the amount owed, and will be required to reimburse the employee for any reasonable costs and attorneys' fees incurred in seeking payment.

Question 2

Who is covered by the Wage Act?

Accepted Answer

The Massachusetts Wage Act applies to all employees in the Commonwealth of Massachusetts, with a few limited exceptions.  There is no minimum number of employees required for an employer to be covered.

The limited exceptions are:
Employees of publicly supported hospitals or charitable hospitals
Employees of a co-operative association if they are a shareholder in the association
Employees of the state who are not "mechanics, workmen or laborers: or employed in a penal or charitable institution run by the state
Bona fide independent contractors

Note, however, that in order to be outside of the Wage Act as an independent contractor, hour employer must meet all of the requirements of the Independent Contractor statute, which are:
You must be free from control and direction in your work
You must be in the business of providing similar services to others
The services you provide must be outside of and different from the core business of the employer.

If all three of those things are not true, the Wage Act should apply to you even if your employer claims you are an independent contractor.

Question 3

When are wages due?

Accepted Answer

Massachusetts law has strict rules about the timely payment of wages.  If these rules are broken, the employer could be liable for three times the amount owed, as well as your reasonable costs and attorneys' fees.

Here are the most important rules:
You should be paid no later than six days after the end of a pay period.
Commissions should be timely paid within that same time period after they are earned under the employer's commission policy.
If you resign, you must be paid your final wages and any unused accrued vacation in the next scheduled payroll.
If you are fired or laid off, you must be paid final wages and accrued vacation on the day of termination.
With very limited exceptions, your employer is not allowed to unilaterally deduct amounts from either your regular or your final paycheck.

Question 4

What can you do if you were not paid on time?

Accepted Answer

Massachusetts law has strict rules about the timely payment of wages.  If you are not paid timely (for regular wages, within 6 days from the end of the last pay period, and for your final paycheck on the date of termination if you are fired or in the next regular payroll if you resign), here are some things you should know:
You have a right to ask your employer to be paid without fear of retribution.  The Wage Act prohibits retaliation for your exercise of your rights under the wage and hour laws.
If you are not paid on time, you may recover three times the amount owed, plus your legal fees if you have to bring a claim in court in order to receive payment.
The law does require you to first file a complaint with the Massachusetts Attorney General's office before you bring a lawsuit.  This is a simple form, and if you indicate that you would like a "right to sue letter" on the form, you should receive a response from the AGO within a week or two, sometimes faster.
Under prior law, if your employer paid you before you filed a complaint they could avoid the triple damages.  A recent decision by the Supreme Judicial Court has clarified that the triple damages are the employer's responsibility for late wages even if they pay you before you bring a lawsuit.

Question 5

Can your employer reduce wages or commissions?

Accepted Answer

Because Massachusetts is an "at will employment" state, your employer can make changes to your responsibilities and compensation at any time, unless you have an employment contract that says otherwise.

However, these must be changes going forward.  Your employer is not allowed to retroactively change your compensation, or withhold any wages or commissions that you have already earned.

You also have a right to be notified of changes before they take effect.  If you were promised $25 per hour, and receive a paycheck showing $20 per hour without being told, your employer has likely violated the Massachusetts Wage Act at least for the weeks you worked believing you were being paid $25 per hour.

This comes up most commonly with commissions.  An employer might change the commission policy during the year, but has to make sure that you are paid for any commissions earned while under the prior policy.

Question 6

Can you be paid on a commission only basis?

Accepted Answer

It is not necessarily unlawful to pay someone on a commission-only basis.  This means there is no hourly wage or base salary, and the employee is paid only a percentage of the business they bring in.

There are a few things you should know about commission-only pay:
The total compensation still must meet at least minimum wage.
If the job is not exempt from overtime, the total compensation needs to also account for the premium for hours worked over 40 in a week.
Commissions are still wages, and still subject to the timely payment requirements of the Massachusetts Wage Act.

If you have a question about your commission pay structure and whether it complies with Massachusetts wage and hour laws, you should consult an employment attorney.

Question 7

Are commissions subject to the Wage Act?

Accepted Answer

If you are paid incentive pay based on your individual contribution to revenue (i.e., sales or revenue received from your services), this incentive pay should be considered a commission, not a bonus.

If it is a commission, it is considered wages under the Wage Act as soon as it is earned.  When commissions are earned can be modified by an employer through its commission policy.  For example, the policy may state that the commission is not earned until money is received from the customer, or until the product is delivered or the services provided.  The default if there is no policy is that a commission is earned when the agreement to purchase is finalized.

Though the employer can control by policy or contract what event triggers the commission being earned, they cannot by policy or contract redefine something that is a commission under the law to a bonus or some other form of payment that is not governed by the Massachusetts Wage Act.

Question 8

When should you be paid commissions?

Accepted Answer

Commissions are considered wages under the Massachusetts Wage Act.  That means they should be paid on the same schedule as regular payroll- weekly or bi-weekly, or in some situations monthly.

This is often not the case, and can be complicated by the fact that different employers have different policies about when commissions are considered earned, and when they are paid after they are earned.

You also should be paid your earned commissions at the end of your employment, even if the policy says that you have to be still employed to receive payment.

If you have a question about whether your commission pay is being unlawfully delayed, or whether you are being paid accurately per the commission policy, you should contact an employment lawyer for help.

Question 9

What happens to earned commissions if the comission policy changes?

Accepted Answer

Employers do change their commission policies from time to time, and generally they have a right to do so.  They cannot, however, cause you to forfeit any compensation you have already earned.

This applies to both wages (or salary) and commission pay.  It is of special concern with respect to commissions, because there is often a lag time between the services you provide and when the commission becomes due and payable under your employer's commission policy.

For example, if your commissions are paid quarterly, and your employer revises the commission policy right before the end of a quarter, there very likely will be a question about what was "earned" before the change, and therefore due to you.

This can get a little complicated, depending on how the original commission policy was structured.  If you are notified of a change in commission policies that will result in you getting paid less than you expected in commissions, it is a good idea to consult with an employment lawyer so you can understand your rights and your options.

Question 10

Is unused vacation time covered by the Wage Act?

Accepted Answer

If your employer offers paid vacation, once you accrue that time it is considered an earned wage under the Massachusetts Wage Act.  The employer is not obligated to pay you for the time when you accrue it, but if you do not use it up they are required to pay the balance when your employment ends, whether you are terminated or you resign voluntarily.  This is true even if you are terminated for cause.

Other forms of paid time off, like sick time or personal days, are not required to be paid at termination.

If your employer has an "unlimited vacation" policy, they may or may not be required to pay some vacation time at termination.  In some jurisdictions, courts have required a payout of some reasonable amount of vacation time, but it remains to be seen what Massachusetts courts will do with this issue.

Question 11

Can your employer take away vacation time by changing policies?

Accepted Answer

Because employment in Massachusetts is "at will," an employer under most circumstances can legally change the terms and conditions of your employment as it sees fit.  This applies to compensation and also to vacation time.

But vacation time, once accrued under the employer's policies, is considered part of your earned wages that can either be used or paid out at the end of your employment.

If you accrue vacation time, and then your employer changes its policies- say, to move to unlimited vacation, or to limit the amount of time you can roll over from year to year- you may be entitled to that vacation time when your employment terminates, or at least sufficient notice and time to use any remaining time before it is lost.

Question 12

What has to be paid at termination?

Accepted Answer

If you are fired or laid off, you must be paid your final pay the day of termination.  If you resign or quit, you still are owed all of these amounts, but it is legal for the employer to pay you in the next regularly scheduled payroll.

Here are the wages you are owed at the end of employment:
All wages or salary earned through the last day.
Any accrued, unused vacation time.
Any commissions that were earned pursuant to the commission policy as of the last day of employment.

Your employer is not require to pay out unused sick time or other paid time off.  If your employer bundles sick time, personal time and vacation into a single PTO bank, they may have to pay all of that out.

If you have not been paid these amounts at termination, or within a reasonable period of time thereafter, you should contact an employment lawyer as there are important steps you need to take to protect your rights.

Question 13

When is a final paycheck due?

Accepted Answer

When your employment ends, for whatever reason, your employer is required to pay all wages earned as of the date of termination in a timely manner.

If your employment is terminated by your employer, they must give you your final paycheck on the day of termination.  This rule applies no matter the reason for termination, even if your employer claims you were fired for deliberate or willful misconduct.  If it was the employer's decision, not yours, to end the relationship, the same day rule applies.

If you resign voluntarily, you still must be paid promptly but it does not have to be the same day.  Instead, the law requires that you receive your final paycheck in the next regularly scheduled payroll.

Question 14

What can be legally deducted from your paycheck?

Accepted Answer

Employers are limited in what they can deduct from your paycheck.  Things like tax withholding and payments for benefits are standard, and can be lawfully deducted.  If you have a wage garnishment or a child support order, there are lawful deductions associated with those as well, but generally capped in amount.

Your employer cannot deduct for expenses of the business that are not agreed to by you and for your benefit.  They also are limited in the ability to deduct for liabilities (for example, damage to property caused by you) or loans.

This often comes up in a final paycheck.  If the employer thinks they are owed reimbursement for a sign on bonus, or training, they might attempt "self help" by withholding it from your last check.  In most cases, this is not legal.

There are also some employers who use regular deductions for things like uniforms, or products used in your job.  This is also questionable, and you should consult with an employment lawyer if you are concerned about these deductions.

Question 15

What travel time is paid time?

Accepted Answer

If you go from home to one worksite every day, the answer is simple: your travel time, or commuting time, is your own time and not compensable under the wage and hour laws.

If you move from place to place during the day, however, that travel time is considered working time.  This means you should be paid for it, and it should count toward your total hours for overtime purposes.

Also, if you are required to do substantial work from home before going to the job, or after returning home, your commuting time may be considered working time.

Question 16

Do wage and hour laws apply to on call time?

Accepted Answer

If you are required to be "on call" for your job, that is considered paid time for purposes of wage and hour laws, unless you are (i) not required to be at the worksite; and (ii) you are effectively free to use the time for your own purposes if there is no call for your services.

The question of whether you are "effectively free" to use the time is a matter of degree, and depends on factors such as the frequency of the calls, requirements of immediate or very short response times, the length of periods of inactivity, and to what extent the employer requires a response to the calls.

If you are salaried and exempt from overtime, there is no separate pay for "on call" time.

Question 17

Is your classification as an independent contractor legal?

Accepted Answer

You may be wondering about your classification as an independent contractor for a variety of reasons.  Perhaps you are trying to collect unemployment, or wondering about a non-compete agreement, or having trouble collecting payment from your employer for services rendered.

What you should know is that the Massachusetts Independent Contractor Law has strict requirements for who can be classified as an independent contractor.  If the employer cannot meet all three of these requirements, you should have been considered an employee.  This means you could be entitled to treble damages for unpaid wages and access to unemployment.

Here are the three requirements:
You are free from control and direction in your work.
You offer the same services to others.
The work you do is not part of your employer's core business.

Question 18

What is the Massachusetts minimum wage?

Accepted Answer

Minimum wage in Massachusetts is $15.00 per hour starting in 2023.  If you are a tipped employee, you may be paid a lower minimum wage of $6.75 per hour, as long as your combined wages and tips bring you at least to $15.00.  If you do not receive sufficient tips to reach that amount, your employer is required to make up the difference.

These increases are part of a five year plan that was passed in 2018 to gradually bring the minimum wage to $15.00.  The hourly rate has gone up a little each year, with 2023 as the final year.

​There are no further scheduled increases in the minimum wage at this time.

Question 19

Who is exempt from minimum wage?

Accepted Answer

There are certain jobs that are exempt from Massachusetts and/or federal minimum wage requirements.

Under Massachusetts law, the following are exempt occupations:

"...professional service, agricultural and farm work, work by persons being rehabilitated or trained under rehabilitation or training programs in charitable, educational or religious institutions, work by seasonal camp counselors and counselor trainees or work by members of religious orders. Occupation shall also not include outside sales work regularly performed by outside salesmen who regularly sell a product or products away from their employer's place of business and who do not make daily reports or visits to the office or plant of their employer."

Employees who are exempt under federal law, but not under Massachusetts law, include certain domestic workers, border patrol agents, and baseball players.

If you are not exempt under Massachusetts law, whether or not you are exempt under federal law, you are entitled to the Massachusetts minimum wage (currently $14.50 per hour, and $15.00 per hour beginning in 2023).

If you are exempt under Massachusetts law but not under federal law, the applicable minimum wage is the federal minimum of $7.25.

Question 20

What is the difference between the wage act and minimum wage laws?

Accepted Answer

Both the Wage Act and Massachusetts minimum wage laws are designed to protect employees.  The main difference is that the Wage Act governs when wages must be paid.  The minimum wage laws, in contrast, control the baseline minimum amount employees must be paid.

If you are being paid regularly, but your hourly rate is less than minimum wage ($14.25 per hour in 2022, and $15.00 per hour beginning in 2023), you can seek relief under the minimum wage laws for the difference between what you are paid and the minimum amount.  The same is true if you are a commission only employee and have weeks or months when you receive no pay at all.

If your rate of pay is higher than the minimum wage but your employer is late paying you, does not pay you at all, or makes unlawful deductions to your paycheck, you can seek relief under the Wage Act.

Not being paid enough and not being paid on time are two different kinds of claims- the first arising under the minimum wage laws and the second under the Wage Act.  Both statutes, however, provide similar remedies- multiple damages and payment of costs and attorneys' fees.

Question 21

What is the minimum wage for tipped emplyees?

Accepted Answer

Service workers who earn tips can legally paid at a lower hourly rate than the standard minimum wage, called the tipped minimum wage.

If you earn $20 or more in tips per week, your employer can pay you at this lower rate.  Be aware, though, that the employer is responsible for making sure your hourly wage and tips combined meet the current state minimum wage of $15.00 per hour each week.

You may be required to share or "pool" tips with other service workers, but these cannot be shared with anyone with management responsibilities in the establishment.

Question 22

What are the rules about tip pooling?

Accepted Answer

If you receive tips in your job, it is important to understand the rules about tip pooling, or tip sharing.  For many in the service industry, they are paid a lower minimum wage (the "tipped minimum wage" on the theory that regular tips will bring them up to minimum wage.

The tip pooling rules apply whether you are paid regular wages or a lower tipped wage.  Basically, the employer can pool and share tips among the people who provide service to customers.  They cannot share those tips with anyone who has managerial responsibilities.

This means even if a person is both a manager and a service person, that individual should not be allowed to share in the pooled tips.

Your employer is also required to insure that the total you receive brings you to the regular minimum wage, combining wages and tips.

Question 23

Is there a small business exception to minimum wage?

Accepted Answer

Under the federal Fair Labor Standards Act ("FLSA"), a business may be exempt from minimum wage requirements if (i) gross sales are less than $500,000 per year; and (ii) the company does not transact business in multiple states.

There is no similar exemption under Massachusetts law, meaning for Massachusetts businesses you still have to pay the state minimum wage regardless of the size of your business.

As a practical matter, this means there is no exemption from the minimum wage for small businesses, because courts will apply Massachusetts state minimum wage if it is more beneficial to the employee than the federal laws.

Question 24

Examples of Wage Act violations

Accepted Answer

Some Wage Act violations are obvious- for example, simply not being paid for weeks or months at a time, or never receiving your final paycheck after your job terminates.  Others are not so obvious, and many people are surprised to learn that a payment practice violates the Wage Act, whether they are the employer or the employee.  Below are some examples.

Late payment of final paycheck: if you are terminated, you are supposed to receive your final paycheck on the day of termination.  If you resign voluntarily, you are supposed to receive it in the next regularly scheduled payroll.

Payroll cycles that do not comply with the Wage Act: the Wage Act requires payment within 6 days after the end of the prior pay period.  This means if a pay period ends on a Sunday, you should be paid no later than the following Saturday.

Incomplete payment of final paycheck: if the paycheck does not include all of your accrued, unused vacation time, or does not include any commissions earned prior to termination, it is incomplete and the holding back of the unpaid balance is a Wage Act violation.

Wage deductions: if wages are deducted for anything beyond taxes, employee benefits (i.e., health, dental, etc.) or court-ordered garnishments, this too could be a Wage Act violation.

Commission payments: commissions are wages under the Wage Act, and are due like regular wages when they are "earned."  This one can be tricky- when commissions are earned is dependent in part on the company's commission policy, which could allow them to delay payment.  If there is no policy, commissions are considered earned when the customer agrees to buy the product or service, regardless of timing of payment or deliver.  Once earned, payment is subject to the same timing requirements as any other wages.

Question 25

Can you be fired for making a wage and hour complaint?

Accepted Answer

Asserting your rights under the wage and hour laws is a protected activity under the law.  That means your employer is not allowed to take action against you in retaliation for raising the issue.  This kind of protected activity includes:

Complaining internally about overtime or minimum wage violations, or late payment of wages or commissions;
Questioning tip sharing policies if you are a tipped employee;
Filing a complaint with the Attorney General about wage and hour violations;
Requesting a copy of your own personnel and wage records.

Question 26

What damages can you get for late or unpaid wages?

Accepted Answer

The Massachusetts Wage Act provides for mandatory triple damages and reimbursement of attorneys fees.  This means if you prove that you were owed money, the court is required to order the employer to pay three times that amount, and to reimburse any attorneys' fees the court deems reasonable.

Until recently, employers could avoid triple damages by paying the amount owed before a complaint was filed.  A recent Supreme Judicial Court decision, however, has changed that, by holding that the employer is subject to this penalty even if they correct their mistake shortly after the payment was due.

By way of example, if you are owed $1,000 at termination and your employer pays that to you late, you are entitled not only to that $1,000, but also an additional $2,000 to bring the total to three times the late paid amount.

This applies to the final paycheck on termination or resignation, as well as to delayed payment of regular payroll checks during employment.

Massachusetts Wage Act FAQs

Understanding the Massachusetts Wage Act: FAQs and Legal Requirements

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What Are the Massachusetts Wage and Hour Laws

What Wages Are Required to be Paid

Massachusetts Minimum Wage

Late Payment of Wages

Wage Deductions and Changes to Compensation

Remedies for Wage and Hour Violations

Meet Our Employment Lawyers

How We Can Help

Questions About the Payment of Wages or Commissions?

How We Can Help

46 South Main Street
Sharon MA 02067

Massachusetts Wage Act FAQs

Understanding the Massachusetts Wage Act: FAQs and Legal Requirements

We're Here to Help.

What Are the Massachusetts Wage and Hour Laws

What Wages Are Required to be Paid

Massachusetts Minimum Wage

Late Payment of Wages

Wage Deductions and Changes to Compensation

Remedies for Wage and Hour Violations

Meet Our Employment Lawyers

How We Can Help

Questions About the Payment of Wages or Commissions?

How We Can Help

46 South Main Street​Sharon MA 02067

46 South Main Street
Sharon MA 02067