Wage Archives - Ortiz & Moeslinger, P.C.

Women in Construction

September 23, 2025/in Wage/by competenow

Part I – Common Claims

Construction is one of the largest industries in the country. Jobs in the construction industry can offer a viable pathway to financial security, particularly for workers without a four-year undergraduate degree. My grandfather, who left high school at an early age, worked his entire life in the construction industry. By securing a union job in construction he was able to support his wife and three kids, including sending my mother to college (she was part of the first freshman class of women accepted at her school). Securing a job in construction can provide a worker—and their family—with life-changing opportunities.

But construction remains a male-dominated field. According to an August 2025 report from the Institute for Women’s Policy Research (IWPR), even though the number of women working in construction nationally has grown in the past decade, “tradeswomen [still make up] only 4.3 percent of all construction trade workers.” The same holds true in Massachusetts. The 2025 Massachusetts Workforce Data Report issued by the Massachusetts Executive Office of Labor & Workforce Development, confirms that women in Massachusetts remain under-represented in the state’s construction industry and that work in construction is a “gendered” job.

Women face several barriers to entering and remaining in the profession. Discrimination and harassment are two of the barriers: women in the industry report worksite hostility and harassment as reasons they consider leaving the profession, and the U.S. Equal Employment Opportunity Commission (EEOC) has identified combatting gender-based discrimination in recruitment and hiring, as one of its Strategic Enforcement Priorities for 2024-2028.

And while the construction industry offers many opportunities for financial stability, it remains plagued with wage and hour violations. The Massachusetts Attorney General Office’s 2025 Labor Day Report states that the construction industry had the second-highest Fair Labor Division enforcement amounts for Fiscal Year 2025. According to the report, the Attorney General Office’s Fair Labor Division issued approximately 300 citations against employers in the construction industry and the office assessed nearly $3.1 million in penalties and restitution against these employers.

Our office regularly represents workers in the construction industry. Through private enforcement of Massachusetts wage and hour and anti-discrimination laws, we seek to contribute to the efforts of government agencies and organizations working to improve opportunities and conditions for women in construction.

In addition to the unpaid wage and overtime cases we handle within the construction industry, some other common claims that our office assesses when working with women in the construction industry include:

Discrimination: An employer cannot make an employment decision based on a candidate or employee’s gender. For example, it is unlawful for an employer to refuse to hire a candidate because she is a woman, to assign fewer hours to an employee because she is a woman or to fail to promote an employee because she is a woman.

Harassment: Anti-discrimination laws also protect employees from certain sex-based harassment. An example of harassment based on sex drawn from the EEOC’s Guidance on Harassment in the Workplace would be “a construction worker on a road crew, [being] subjected to sex-based epithets and other demeaning sex-based language by her supervisor, such as ‘sandwich-maker’ and ‘baby[,]’ [and] disparag[ing remarks from her supervisor about] women’s participation in the construction industry, for example by stating that road construction is ‘a man’s job.’” Sex-based harassment also includes sexual harassment, and can include pregnancy-based harassment (there are also more specific protections in place for pregnant workers, under state and federal law).

Independent Contractor Misclassification: Massachusetts follows a strict employee status test, commonly known as the “ABC test,” which determines whether the worker has a right to employee wage and hour protections such as the right to timely payment of earned wages, the right to minimum wages, the right to overtime, and the right travel expense reimbursement for intraday travel. When an employer misclassifies a worker as an independent contractor (when that worker should be an employee according to the “ABC test”), we refer to it as independent contractor misclassification. Construction work is a commonly misclassified job. According to one recent study, “a typical construction worker, [classified] as an independent contractor, would lose as much as $19,526 per year in income and job benefits compared with what they would have earned as an employee.” Individualized assessment is needed to understand what losses might have occurred due to misclassification.

Prevailing Wage: Prevailing wage refers to mandated hourly rates that construction workers must receive for working on certain public projects. You can read more about our firm’s work on prevailing wage cases, and its connection to independent contractor misclassification.

Retaliation: Too often, workers are afraid to report discrimination, harassment, or wage and hour violations due to fear of retaliation. Anti-discrimination laws forbid employers from retaliating against employees for engaging in “protected conduct,” which refers to conduct that opposes the unlawful discrimination (for example, reporting the unlawful discrimination to HR). Massachusetts wage law also forbids employers from retaliating against employees for asserting their statutory wage and hour rights. M.G.L. c. 149, § 148A (“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.”). Retaliation can take the form of demotion, termination of employment, a reduction in hours, or rescheduling to an undesirable assignment, to name a few examples. These examples are drawn from the Massachusetts Attorney General’s Fair Labor Division’s Anti-Retaliation Protections under the Massachusetts Wage and Hour Laws FAQ Sheet.

Medical Leave: Those working in construction have medical leave rights just like other employees in Massachusetts. Here’s how PFML rights and claims work in Massachusetts.

This post only provides a summary of common employment law claims that arise for women in construction. To understand whether you may have a viable claim, feel free to reach out for an individualized assessment.

Author’s Note: The U.S. Equal Employment Opportunity Commission, the federal agency responsible for enforcing federal anti-discrimination employment laws, identified combatting discrimination in the construction industry as one of its strategic enforcement priorities for 2024-2028. Much of this post draws on its report, Building for the Future: Advancing Equal Employment Opportunity in the Construction Industry, U.S. Equal Employment Opportunity Commission, Report of Chair Charlotte A. Burrows, May 2023 [“Building for the Future”], which is no longer available online. Other resources from the EEOC on the topic include Knocking Down Walls: Discrimination and Harassment in Construction from the Commission’s May 17, 2022, hearing and “Combating Employment Discrimination in Construction.”

Retaliation Claims Under the Massachusetts PFML Leave Law: What Employees Need to Know

June 5, 2025/in Wage/by competenow

What Is PFML?

Paid Family and Medical Leave (PFML) is a Massachusetts program
that allows employees to take paid time off for family or
medical reasons. It is funded by employer and employee contributions and is
separate from the federal Family and Medical Leave Act (FMLA). Eligibility,
qualifying reasons, and procedures are set out in Chapter 175M of the Massachusetts General Laws.

PFML not only provides paid leave; it also protects employees from retaliation
and discrimination for exercising their rights. The sections below explain
those protections.

PFML Protections

Some safeguards begin as soon as you notify your employer of
your intention to take PFML leave—for example, protection against retaliation.
Others start once your leave begins (such as continued health-insurance
coverage). When you return, PFML guarantees:

Reinstatement to the same or an equivalent position
Preservation of any benefits you had before leave

The Right to Return to the Same Position

When your PFML leave ends, your employer must restore you to the
same (or an equivalent):

Status
Pay
Employment benefits
Length-of-service credit
Seniority

Exceptions

Reductions in force: If similarly situated coworkers
were laid off for economic or operational reasons during your leave,
reinstatement is not required.
Term/project roles: If your job was tied to a specific
term or project that ends during your leave, reinstatement is not
required.

Even in these situations, you keep any
preferential consideration for other openings that you enjoyed
when your leave began.

Accrual of Benefits

Your employer may not cut, pause, or stop your ability to
earn vacation, sick time, seniority, or other benefits once
you resume work. Time spent on PFML does not have to count toward
accruals, but accrual must restart unaltered on your return.

Example: If you earn two vacation days per month and take a one-month
PFML leave, you do not earn vacation during that month—yet you must resume
earning two days per month immediately upon return.

Retaliation and the Six-Month Rule

What Counts as Retaliation?

Employers may not punish you because you:

Took or applied for PFML
Announced plans to take PFML
Filed a PFML-related complaint

Forbidden actions include termination, discipline, demotion, pay cuts, hour
reductions, negative changes to terms or conditions, threats, or other forms
of discrimination.

The Presumption of Retaliation

Any negative employment action during leave
or within six months after leave is presumed unlawful.
Your employer—not you—must prove, by
clear and convincing evidence, that the action was entirely unrelated
to your PFML leave.

Remedies if Your Employer Retaliates

If the employer cannot meet that burden and is found liable, a court may order:

Reinstatement to your position (or an equivalent one)
Restoration of lost benefits and seniority
Treble damages: three times lost wages, benefits, and other compensation
Payment of court costs and attorneys’ fees

Potential for Punitive Damages

PFML also allows tort-style remedies, including
punitive damages where an employer’s conduct is especially
egregious—e.g., a blanket policy of demoting every employee who requests PFML.
Punitive awards deter both the offending employer and others from similar
misconduct.

Need Advice?

If you believe your employer retaliated against you for exercising PFML rights,
contact us:

Phone: (617) 338-9400

Email: [email protected]

We will assess your case at no charge.

When “Payday” Comes Only Once a Month: Why Massachusetts Employers Face Treble-Damages Exposure for Monthly Payrolls

May 31, 2025/in Wage/by competenow

On February 21, 2025, Boston University lecturer Lydia Curtin-Wilding filed a putative class action alleging BU paid faculty only once a month—on the last business day—without securing the required written elections. BU’s bid to dismiss was rejected on May 23, 2025, leaving the claim—and the prospect of eight-figure damages—very much alive.

Why late pay equals unpaid pay

The statute treats timing as absolute: when wages arrive late, they are legally “unpaid.” The employer automatically owes:

Treble the late-paid amount
12 % statutory interest
Reasonable attorneys’ fees and costs
Joint personal liability for presidents, treasurers, and any “agents having management” of the business

Because the violation repeats every cycle, damages scale arithmetically. A $90,000-salary employee paid monthly instead of bi-weekly accrues roughly $7,500 in late wages each cycle; trebling that over 36 months produces more than $810,000 for one worker.

A growing pattern: Harvard and Amherst

BU is not alone.

Harvard University was sued in January 2025 for the same practice; the complaint alleges “millions of dollars” in systemic late wages to adjunct faculty.
Two former staff members sued Amherst College in December 2024, claiming the college’s default monthly schedule withheld more than $100,000 in timely pay between them and similarly affected hundreds of employees.

Together with BU, these filings underscore how quickly the Wage Act’s timing rules translate into class-wide exposure when large institutions rely on legacy monthly payrolls without documenting employee consent.

Practical implications for employees and counsel

Proof is straightforward: payroll ledgers show both the schedule and the absence of signed elections.
Class certification is appropriate: one uniform policy, the same math for each check.
Damages are mandatory: employers cannot “cure” by paying after suit—Reuter makes treble awards automatic once a violation occurs.
Officer liability raises settlement leverage: individual executives face personal judgments if the case proceeds to judgment.

Take-home

The Curtin-Wilding BU decision is a reminder that the Wage Act’s timing provisions are not mere technicalities—they are enforceable rights with strong remedies. For employees paid monthly without a signed agreement to be paid this way, every paycheck carries a built-in MA Wage Act claim. Employees who suspect late payment have a strong statutory ally, a clear damages formula, and a growing body of recent case law in their favor. If you are being paid monthly in Massachusetts, feel free to get in touch to discuss your case.

Class Action Arbitration Order: FreedomRoads and Celebrity Marcus Lemonis

May 30, 2025/in Wage/by competenow

We are excited to announce a major victory for our client and 101 other sales associates in our battle against FreedomRoads, LLC and its celebrity owner, Marcus Lemonis, for unpaid overtime and Sunday premium pay.

On January 22, 2025, an arbitrator ruled that our case – which is pending in arbitration – can proceed as a class action, thanks to our use of California case law to interpret an odd phrase in the company’s arbitration agreement. This decision could pave the way for these workers to recover overtime and Sunday pay we contend they are due under Massachusetts law. Here is the Arbitration Order.

First Things First: What’s Arbitration?

Arbitration is a private, out-of-court process where a neutral third party – called an arbitrator – hears disputes between two parties and makes a binding decision. Employers often force employees to sign arbitration agreements requiring them to file claims against the company in arbitration instead of court. These arbitration agreements also usually contain class action waivers which prohibit the employee from suing on behalf of their coworkers.

While arbitration is often billed as a cheaper and faster alternative to court, the reality is that employers push arbitration agreements because they think they fare better in arbitration than in court. Employers also include class action waivers to prevent workers from joining together to sue. Why? It is a lot cheaper to face a claim by one employee instead of dozens or hundreds.

Arbitration is also shrouded in darkness – unlike court, precious few decisions made in arbitration see the light of day. This allows repeat offenders to continue abusing employees’ rights with minimal social and judicial accountability. It also undermines the development of case law (judge’s decisions that interpret and shape the law).

The Case: Fighting for Fair Pay

FreedomRoads, LLC sells RVs at a variety of locations across the country. The company is owned by celebrity Marcus Lemonis – best known for his time hosting The Profit, a CNBC reality TV show. The company is a subsidiary of Camping World, a publicly-traded company where Mr. Lemonis serves as chairman and CEO.

In our arbitration demand, we alleged that our client – James Meglio, a senior citizen – and other sales associates at FreedomRoads’ were paid draw pay (an advance against future commissions) and commissions but were not separately compensated for overtime and Sunday premium in violation of the Massachusetts wage laws. A 2019 Massachusetts Supreme Judicial Court decision (Sullivan v. Sleepy’s) declared such practices unlawful, yet FreedomRoads continued them until December 2023—only after Mr. Meglio filed his claims.

The Challenge: A Tricky Arbitration Clause

FreedomRoads required employees to sign arbitration agreements limiting claims to individual actions unless a class action was the “only effective way to halt and redress the alleged violations.” Odd language, huh? Not so much.

As we argued to the arbitrator, the phrase “halt and redress” isn’t random—the language first appeared in a 1976 class action case in which a California Supreme Court justice opined, in a concurring decision:

“A company which wrongfully exacts a dollar from each of millions of customers will reap a handsome profit; the class action is often the only effective way to halt and redress such exploitation. […] the problems which arise in the management of a class action involving numerous small claims do not justify a judicial policy that would permit the defendant to retain the benefits of its wrongful conduct and to continue that conduct with impunity.”

See Blue Chip Stamps v. Superior Court, 556 P.2d 755, 759 (Cal. 1976) (Tobrin, J., concurring)

Put differently, if an employer unlawfully takes $100 from 1,000 employees, it makes a tidy profit. Employees generally cannot afford to sue over $100 (or find a lawyer willing to do so), allowing the wrongdoing to continue. The only effective way to stop the employer’s illegal practice is to allow these 1,000 employees to band together in a class action: now facing a $100,000 lawsuit, it is much harder for the employer to justify business as usual; and relying on the strength of their numbers, the employees can effectively recover the relatively small amounts owed to each of them.

In the years that followed, California courts – including in Discover Bank v. Superior Court (2005) and Gentry v. Superior Court (2007) – developed a standard for when class actions are essential to address wage and consumer violations. These cases held that class actions are the “only effective way to halt and redress” wrongs when:

Individual recoveries are small, discouraging solo claims;
Workers may fear employer retaliation;
Employees are unaware of their rights; and
Practical barriers, like finding affordable legal help, block individual actions.

When those circumstances are present, those courts concluded that a class action waiver is unenforceable and the workers must be permitted to proceed on a class-wide basis.

We argued that the arbitration agreement’s use of “halt and redress” deliberately echoed this California standard, reflecting FreedomRoads’ intent to allow class actions under these conditions.

The Arbitrator’s Ruling: A Nod to Legal History

The arbitrator sided with us, finding our approach “more reasonable than assuming FreedomRoads’ then counsel plucked the language out of thin air.” The decision (here’s a copy) recognized that the “halt and redress” language likely drew from California case law, suggesting FreedomRoads’ agreement was drafted to survive legal scrutiny by allowing class actions in specific cases.

And on the facts of our case, the arbitrator agreed that a class action was uniquely effective because: (i) sales associates were owed modest amounts, making individual claims unlikely; (ii) employees could fear retaliation if they brought their own claims; (iii) FreedomRoads misled workers by claiming a “change in the law” when it began paying overtime wages in 2023, hiding the Supreme Judicial Court’s 2019 ruling and their potential right to back pay; and (iv) individual arbitrations would be costly, inefficient, and leave many workers without relief. The arbitrator also noted that FreedomRoads only started paying overtime after our class action threat, proving the power of collective action to halt violations.

What’s Next and Why It Matters

This ruling allows the case to move forward as a putative class action, pending a future decision from the arbitrator on class certification. In the meantime, FreedomRoads and Mr. Lemonis continue to fight to avoid a ruling that would require them to pay these employees the overtime and Sunday wages we believe they are indisputably owed. Most recently, they filed a motion attempting to vacate the arbitrator’s order allowing class proceedings. We have filed an opposition and are optimistic that the court will deny their request.

This case is a testament to how creative legal strategies—like using California case law to interpret a Massachusetts contract—can level the playing field for workers. By tapping into the historical meaning of “halt and redress,” we turned a restrictive clause into an opportunity for justice. We look forward to continuing to fight to recover wages for all 102 sales associates impacted by FreedomRoads’ pay practices.

At Ortiz & Moeslinger, P.C. we’re proud to fight for workers’ rights with bold, thoughtful advocacy. If you suspect your employer is violating wage laws, reach out to us to explore your options.

Employer paying your wages late? “One day” matters

April 17, 2025/in Wage/by competenow

The Massachusetts Wage Act sets strict deadlines as to when your employer must pay your earned wages. The Act requires that employers pay their employees earned wages within six or seven days of the pay period in which the wages are earned, with certain exceptions. When an employer terminates an employee, the Wage Act also requires that it pay all wages in full on the day of discharge. You can read the full text of the statute here: General Law – Part I, Title XXI, Chapter 149, Section 148.

If an employer fails to pay wages within the deadlines set by the Wage Act, M.G.L. c. 149, § 148, the affected employee may bring a claim in court to recover damages and lost wages. If the employee wins on that claim, the employee “shall be awarded treble damages,” as well as reasonable attorneys’ fees and costs. See M.G.L. c. 149, § 150. In other words, if an employee proves in court that her employer failed to pay her $1,000.00 in earned wages, in violation of Wage Act, M.G.L. c. 149, § 148, she will be awarded $3,000.00 (three times that amount), as damages for the lost wages.

But what if the employer eventually pays the employee her $1,000.00 in earned wages—but after the statutory deadline for payment? In other words: how late is too late?

In Reuter v. City of Methuen, 489 Mass. 465 (2022), the Massachusetts Supreme Judicial Court held that earned wages paid to an employee just three weeks after the statutory deadline for payment (but before the employee sued), still counted as “lost” wages and that the employee should be awarded treble damages in the amount of the late payment.

A recent decision in the Massachusetts federal district court case, Volkan Turgut v. Hitachi Rail STS USA, Inc., Civ. A. No. 24-CV-10660-AK (D. Mass.), sheds further light on the question of: how late is too late? The plaintiff in that case is challenging his employer’s alleged practice of regularly paying all its Massachusetts employees’ earned wages one day later than required by the Wage Act. The employer moved to dismiss the case, causing District Judge Angel Kelley, to examine the question: “does one day make a difference?” Judge Kelley’s decision reviews the history and purpose of the Act, which “was designed to provide protections for employees by requiring the prompt payment of wages,” and discusses guidance from the Massachusetts Attorney General’s Office, on the deadlines for timely wage payments, which can be found here Pay and recordkeeping | Mass.gov. Ultimately, recognizing the importance of timely wage payments, Judge Kelley denied the employer’s motion to dismiss, and opined that payment even one day late matters:

[T]o some, the difference could mean a day earlier parents can purchase groceries; or a student’s ability to pay rent on time; or the faster a patient can pay for a medical procedure. This Court answers the question posed to it in the affirmative: a day matters for the many people in this Commonwealth who live paycheck to paycheck.

The Supreme Judicial Court agrees, “[t]he statute leaves no wiggle room” when it comes to the deadlines it sets for payment of wages. 489 Mass. at 470. Because the Wage Act is a strict liability statute, the reason the employer paid its employees their earned wages late is also irrelevant to establishing a violation and seeking an award of treble damages. In the words of the Court, Wage Act requires “employers rather than employees [] bear the costs of such delay and mistakes, honest or not.” Id. at 471.

The Massachusetts Wage Act, as supported by these decisions, treats the late payment of wages as a strict line. This is sensible given the harm late payment can cause to someone just making ends meet, and the various harms a permissive culture of late wage payment would wreak. If you have been paid your earned wages late within the past three years, you may have a claim for treble damages

Care Coordinators May be Misclassified and Entitled to Overtime and Backpay

August 23, 2022/in Overtime, Wage/by competenow

Managed Care Organizations (MCO’s) often contract with State Health Departments to provide care for dually eligible Medicaid and Medicare patients pursuant to requirements established by the federal Centers for Medicare & Medicaid Services (CMS). Care coordinators provide case management services on behalf of the MCO to various populations.

Managed Care Organizations is a vague term for normal people but some examples include:

Aetna/CVS Health
Anthem, Inc.
Health Care Service Corporation (Blue Cross Blue Shield)
BMC HealthNet
CareSource
Centene
Cigna
Humana
Independence Health Group
Molina Health
Tufts Health
UnitedHealth Group
WellCare

If you work or have worked for an MCO in the past three (3) years and are/were:

Classified as exempt from overtime (you did not receive overtime pay and likely did not clock in and out for your schedule work shifts)
Paid on a salary basis (your paycheck is the same every pay period regardless of how many hours you worked) and
Routinely work over 40 hours per week but are not paid for hours worked over 40 per week

You may be entitled to overtime and backpay! Contrary to popular belief, employees paid on a salary basis are not automatically exempt from overtime – time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. Instead, everyone is entitled to overtime unless they fall within particular exemptions established by the FLSA.

Under the Section 13(a)(1) of the FLSA, certain categories of employees can be exempt from the overtime provisions of the FLSA, including employees working in a bona fide administrative, executive, or professional capacity.

An employee’s exempt status depends on whether their job duties qualify the employee for an exemption from federal overtime protections. Job Title is irrelevant for purposes of determining appropriate exemptions under the FLSA. For example – just because your job title is “administrator” does not mean you are administratively exempt. Instead, in order to be exempt under the administrative exemptions, an employer must show that the primary duties of the “administrator” are:

The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684 per week;
The employee’s primary duty must be 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
The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

The United States Department of Labor (“DOL”) Fact Sheet regarding the Administrative Exemption can be found here. In addition, the DOL issues opinion letters in order to address particular questions or gray areas regarding exemptions and compliance with the FLSA. While the DOL has not addressed the issue of care coordinators directly – it has found that other similar employees are not exempt employees.

For example, in DOL Opinion Letter FLSA2005-50 (November 4, 2005), the DOL found that “caseworkers” that “provide case management services” and who possessed a bachelor’s degree in social sciences were not administratively exempt employees under the FLSA. Similarly, in FLSA2007-7 (February 8, 2007), the DOL found that “case managers” were non-exempt whose primary duty “is to meet and to work with consumers to gather information, to assess each consumer’s needs, to assess the costs of care, to prepare a plan of care, and to identify and to implement services to meet the consumer’s needs.” The DOL emphasized that case managers “do not personally deliver or administer services to the consumers – but are response for planning and helping to obtain those services from third-party service providers.”

Care Coordinators often do similar work to the caseworkers and case managers the DOL has held are not exempt from overtime. If you have performed care coordination services in excess of forty hours per week without receiving overtime pay in the last three years, you may have a valuable claim for unpaid wages. We evaluate cases confidentially and at no cost to you. You can reach us by phone at (617) 338-9400, by email at [email protected], or by filling out the form below.

Mass SJC: Late Wage Payments are Lost Wages Subject to Treble Damages

April 4, 2022/in Wage/by competenow

If your employer does not pay your earned wages on the date they are due, you are immediately entitled to triple damages on the late amount. If you are terminated, all wages, including vacation pay, are due on the date of your termination. If you resign, all wages are due on the next regular pay day. Also, if you are still employed and your pay is late, you also have the right to treble damages.

I am highlighting this because today the Supreme Judicial Court issued its long-awaited decision in Reuter v. City of Methuen, SJC-13121 (April 4, 2022). In the case, the Methuen had terminated Ms. Reuter’s employment but had failed to pay her accrued vacation pay in the amount of $8,952.15 on that same day. Three weeks later, Methuen paid the outstanding vacation pay. After Ms. Reuter employed a lawyer, Methuen paid her an additional $185.42, representing interest on the late-paid amount. Ms. Reuter (hereinafter “plaintiff”) brought a lawsuit for the late payments, arguing that she was owed treble damages on the late-paid amount. After the trial court ruled that she was not entitled to extra damages (in other words, in light of the vacation pay that was paid late, an additional $17,904.30), the plaintiff appealed.

Massachusetts’ highest court agreed with the plaintiff, holding “that ‘lost wages’ encompass all late payments under the Wage Act.” Id. at 11. The SJC noted that, “The
Legislature has chosen the stick rather than the carrot to encourage compliance with the act and to address a history of nonpayment and wage theft.” Id. This is a significant win for employees who have been fired and not paid all their due wages on that same day. (Employees who resign must be paid on the next, normal pay period, not the same day). Given language in a case penned by highly-respected former justice, Ralph Gants (now sadly deceased), litigants and courts had grappled for many years with the uncertainty about how late wage payments might affect Wage Act rights. See Dobin vs. CIOview Corp., Mass. Sup. Ct., No. 2001-00108 (Middlesex County Oct. 29, 2003). However, today the SJC settled that debate. An employer must pay all wages, including earned but unused vacation pay, on the same day that it involuntary terminates an employee, even if employee wrongdoing is alleged.

We extensively handle these cases. If you have been paid wages late within the past three years, or if your employment was terminated, and you weren’t paid all your earned wages on that day, feel free to reach out to us for a free case evaluation.

Reading Commission Contracts: Your Unpaid Commissions Can Be Trebled Under the Massachusetts Wage Act

October 6, 2021/in Commissions, Wage/by competenow

The Massachusetts Wage Act (“Wage Act” or “Act”) requires all earned wages to be paid within six days of the end of pay period. M.G.L. c. 149, s. 148. The Wage Act applies to commission payments as long as the commissions are “definitely determinable” and “due and payable” (i.e. as long as the payment in question is a commission, not a bonus (link). Id. If your employer fails to timely pay your earned commissions, you could be entitled to triple damages, attorneys’ fees, and interest on the late payment. See DeSantis v. Commonwealth Energy System, 68 Mass. Ct. 759 (2007).

Commissions are “definitely determined” when they are arithmetically determinable – i.e., you can apply a formula to determine their value. See Okerman v. VA Software Corp., 69 Mass. App. Ct. 771 (2007). For example, when an employee is due 3 percent of the total of the sales he makes each month.

But how do you know if your commission is “due and payable”? In other words, how do you know if you have completed all the required conditions on your right to receive the payment? We turn to contract law for the answer. Commission claims are essentially contract claims with liquidated (trebled) damages attached to them. That means determining whether your commission is due under the Wage Act requires the application of contract law principles.

Interpreting Contract Terms

Courts interpret contract terms with the goal of identifying the intention of the parties at the time they entered into the contract. The court is not supposed to consider the subjective intent of the parties, but rather engage in an objective analysis – what would a reasonable person, having all the background knowledge the parties had at the time of contract formation, have understood the terms of the contract to be?

The court will first turn to the plain language of the contract itself. If the contract or provisions in question are unambiguous, the court will only look to the text of the contract to interpret the parties’ intent. This is known as the “four corners rule”. A contract or provision is considered ambiguous if it reasonably susceptible to more than on interpretation. A provision is not ambiguous simply because the parties disagree as to its construction or urge alternative interpretations.

The court will generally interpret any ambiguous terms or provisions against the party who wrote or requested the inclusion of those terms. This is known as the principle of “contra prementum” or “interpretation against the draftsman”. In commission contracts, this is usually the employer. However, some contracts include clauses that eliminate this principle. And some courts will only apply contra prementum as last resort if other evidence fails to resolve the ambiguity.

The court will aim to interpret the contact in a commercially reasonable manner and not adopt an interpretation that produces an absurd result. The court will also attempt to analyze and give effect to the contract as a whole. If there conflicting terms in the contract, it will attempt to interpret those terms in a way that harmonizes them with the full contract.

Extrinsic (Outside) Evidence

If the terms of the contract are unclear or ambiguous, the court may allow the parties to introduce extrinsic (outside) evidence to help demonstrate the intention of the parties at the time of the contract formation. Extrinsic evidence could include: (1) witness testimony describing what they thought the contract term to mean; (2) emails or other correspondence discussing the contract terms; and/or (3) the past or current conduct of the parties (for example, how was your employer paying out your commissions before this dispute?). Extrinsic evidence is supposed to help clarify the meaning of any ambiguous words or terms in the contract. Surrounding circumstances or the relevant background of the contract formation might also be examined by the court. Note, extrinsic evidence is used to determine the intent of the parties at the time the contract was formed and cannot but used to later create an ambiguity in wording of the contract.

Integration Clauses

An integration clause is a provision in a contract that specifies that the written contract is the final agreement between the parties and overrides any other oral or written statement. This clause is intended to prevent parties from claiming that the contract doesn’t reflect their actual agreement. A typical integration clause will say something like “This Agreement is the entire agreement between the parties in connection with (the subject matter of this Agreement), and supersedes all prior and contemporaneous discussions and understandings.” Integration clauses are common in employment and commission agreements.

Except in cases of fraud or misrepresentation, the Parol Evidence Rule generally prohibits the court from considering extrinsic evidence if the contract contains an integration clause. Hallmark Inst. of Photography, Inc. v. CollegeBound Network, LLC, 518 F.Supp.2d 328, 331 (D.Mass.2007) (the parole evidence rule in Massachusetts “prohibits the introduction of extrinsic evidence to alter the terms of an integrated and complete written contract”); Starr v. Fordham, 420 Mass. 178, 648 N.E.2d 1261, 1268 (1995) (“[a]n integration clause in a contract does not insulate automatically a party from liability where he induced another person to enter into a contract by misrepresentation.”). If your commission contract contains an integration clause, it’s important that the language in the contract contains the full and complete agreement between you and your employer, including any verbal agreements. It’s also important to get any later modifications to agreement in writing. While the court might consider evidence of a later oral modification to an agreement, “the proponent of the oral modification must present evidence of sufficient force to overcome the presumption that the integrated and complete agreement . . . expresses the intent of the parties.” Hoffman v. Thras.io Inc., No. CV 20-12224-PBS, 2021 WL 1858688, at *7 (D. Mass. May 10, 2021) (internal citations omitted) (emphasis added).

Unenforceable Terms

Just like in any contact claim, some terms of your commission contract might unenforceable (i.e. a “special contract” under the Wage Act). See Electronic Data Systems Corp. v. Attorney General, 454 Mass. 63, 70 (2009) (holding that employers are precluded from “drafting contracts that place[] compensation outside [the] bounds” of the Wage Act). For example, a clause that requires you to be employed on the date your commissions are paid out, even if you completed all the work required to earn the commission before leaving the company, could be unlawful under the Act. See McAleer v. Prudential Ins. Co. of Am., 928 F. Supp. 2d 280, 289 (D. Mass. 2013) (holding that unless the contract specifies otherwise, “courts generally consider that the employee earns the commission and it becomes due and payable when the employee closes the sale, even if there is a delay in actual payment on the sale”) Your commissions are also likely still due to you if your employer unlawfully terminates your employment before your commissions are paid. See Parker v. EnernNOC, 484 Mass. 128, 134 n. 10 (2020) (“the [Wage] Act does not allow an employer to set a condition under which it agrees to pay wages to an employee and then make it impossible for the employee to satisfy the condition in an effort to evade its responsibility to pay those wages”).

Be sure to also review your commission contract for other common provisions that could impact your Wage Act claims—such as clauses requiring arbitration and choice of law provisions.

Employment contracts can be complicated, but if you believe your employer might owe you earned commissions, we offer free analysis of your potential claims. You could be entitled to triple damages and interest on the amount owed, plus your attorneys’ fees and costs for pursuing your earned wages. Please feel free to contact us at (617) 338-9400.

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Ride share driver in car using the rideshare app in mobile phone. New taxi ride request from customer in smartphone application.

Wage Claims for Uber and Lyft Drivers

August 13, 2021/in Overtime, Wage/by competenow

Recent litigation in Massachusetts has focused on whether rideshare drivers for companies such as Lyft and Uber are misclassified as independent. In the case of Cunningham v. Lyft, Inc., No. 1:19-cv-11974-IT, 2020 WL 2616302 (D. Mass. May 22, 2020) a Massachusetts federal judge recently ruled that that the defendant rideshare company, in this case Lyft, likely misclassified its drivers as independent contractors instead of employees under the Massachusetts independent contractor law. This is a preliminary ruling based on the judge’s view of the likelihood of success. The court held that Lyft would be unlikely to carry its burden of proving independent contractor status for its drivers.

Under the Massachusetts Independent Contractor statute, a worker is presumed to be an employee unless the company hiring the worker establishes all three of the following:

(1) that the worker is free from control and direction in connection with the performance of their work, both under the applicable contract and in fact; and

(2) that the worker performs work outside the usual course of the business of the company; and

(3) the worker is customarily engaged in independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

M.G.L. c. 149, § 148B. The defendant company has the duty of proving that all of the above three factors are true for a worker to be an independent contractor instead of an employee.

The second prong of this test is especially difficult for a rideshare company to establish. As the judge in the Lyft case noted, in determining whether the services provided are outside a company’s usual course of business, two things matter: (1) the nature of the services performed by the worker, and (2) what is the usual course of business of the company. With respect to the second question, the court concluded that:

“Based on the record in front of the court, the court finds a substantial likelihood of success on the merits that, despite Lyft’s careful self-labeling, the realities of Lyft’s busines – where riders pay Lyft for rides – encompasses the transportation of rights. The ‘realities’ of Lyft’s business are no more merely ‘connecting’ riders and drivers than a grocery store’s business is merely connecting shoppers and food producers, or a car repair shop’s business is merely connecting car owners and mechanics”

Cunningham v. Lyft, Inc., at 10. The court recognized that Lyft’s revenue is directly contingent on how much drivers drive; therefore, drivers are not merely incidental to Lyft’s business. In other words, Lyft could not continue as a company without its drivers.

The main takeaway from the District Court’s decision in Cunningham v. Lyft, Inc. is that rideshare drivers for companies such as Lyft and Uber have strong misclassification claims under the law of Massachusetts.

The damages for a misclassification claim can be significant. A worker that is misclassified as an independent contractor can recover all of the wages and benefits that an employee is entitled to, such as overtime wages and mileage reimbursements.

We Can Help

If you have driven for a rideshare company, such as Uber or Lyft, within the last three years, feel free to get in touch. You may have a valuable misclassification claim.

We evaluate cases confidentially and at no cost. You can reach us at (617) 338-9400, [email protected], or via this free wage case review.

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My employer didn’t pay me, what can I do: What Do You Do if Your Employer Doesn’t Pay You

May 5, 2021/in Wage/by competenow

What do you do if your employer doesn’t pay you? Well, if your employer has not paid you your paycheck, Massachusetts law guarantees you certain rights. First, your employer must pay you within six days after your pay period ends (seven days if you work a seven-day workweek). If you are fired, your employer must pay you all your earned wages on your last day of work. M.G.L. c. 149, § 148 (“any employee discharged from such employment shall be paid in full on the day of his discharge.”) Earned wages includes any earned, but unused vacation pay due “under an oral or written agreement” and any commissions that are “definitely determined and has become due and payable.”

It is smart to contact an attorney ASAP if you believe that you were not paid your earned wages as required by law. The law states that an employer may not make payment of the wages after the filing of a complaint and use it as a defense in the case. If it weren’t for this law, employers could simply not pay, make employees spend time and money their earned wages, then finally pay with no real downside. Further strengthening employees’ hands, the law states that an employee who wins their case may receive three times their unpaid wages in Massachusetts plus the attorneys’ fees and costs necessary to prosecute the lawsuit. if the employee takes their case to court and wins. In other words, if you don’t get paid, you don’t have to go into debt to get your money.

If you are still employed, and your employer has failed to pay you your earned wages, the law also protects you from retaliation as you attempt to obtain your money. When an employee complains about overtime or unpaid wages in Massachusetts, under state law, the employee is protected from discharge or other punishment because of the complaint. This protection extends to formal complaints filed in court or with the attorney general, but also includes protection for making informal written or verbal complaints directly to your employer for violations of the Wage Act or overtime law.

If you are terminated or fired from a job and not paid in full the same day, it is prudent to leave with written evidence that you were fired and did not quit. If you can’t get a written acknowledgment of your termination, make note of any witnesses to the fact that you were fired and did not quit. If you are contacted while at home or otherwise away from the job site and terminated, it is smart to respond in writing (an email is fine) and ask for your final pay. If your employer fails to pay you, you will have a solid claim.

Wondering what do you do if your employer doesn’t pay you? Reach Out to Us for the Answer

Don’t let your employer deny you pay. Whether you’re still employed or recently fired, our team can provide the support you need. Call us or fill out the form below for a free case review to find out if you have a claim.

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Unpaid Sales Commissions in Massachusetts: When Suing for Unpaid Commissions is Plausible

August 21, 2020/in Commissions, Wage/by competenow

The Massachusetts Wage Act, which provides plaintiffs with triple damages and attorneys’ fees for successful unpaid wage claims, also applies to commissions. M.G.L. c. 149, s. 148 states:

This section shall apply, so far as apt, 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 other words, if your commission can be calculated and is due under the terms of your employment contract, your employer must pay it to you or he or she is breaking the law and is subject to stiff penalties. In our practice, we find that unpaid commissions are one of the most commonly violated parts of the Wage Act.

Why Do Employers Fail to Pay Commissions in These Cases?

In some instances, employees do too well and significantly exceed their sales targets. Other times, employers fail to pay owed commissions because of cash flow problems. Disputes may also arise as to whether the commission is actually owed because the employer claims that the employee did not fulfill a requirement or left the company before the commission became due and payable. Some employers in these cases go so far as to manipulate their employee’s commission accounts to avoid payment.

One strategy that some employers use in an attempt to avoid mandatory payment of commissions (and, in the litigation context, triple damages for non-payment), is to characterize commissions as discretionary. The idea is that if the commission is entirely at the discretion of the employer, it is not “due and payable” until the employer exercises that discretion and decides to pay, much like a fully discretionary bonus. For this strategy to work, however, the courts have made clear that the contract governing the commissions must be unequivocal that the commissions are in fact entirely discretionary.

A federal decision from the District of Massachusetts addressed this issue directly. The court determined that the Wage Act applies even to commissions that the employer characterizes as “discretionary.” In McAleer v. Prudential Insurance Company of America, the plaintiff-employee sued for commissions owed under a plan that granted his employer, Prudential Insurance, significant discretion in making factual determinations and calculations, and evaluating eligibility of his sales for commissions. The court ruled that the terms of the plan did not really give Prudential a blank check in determining whether it would pay commissions or not. To interpret the contract in that manner, the court determined, would be to “render the plan meaningless.” The hefty remedies provided for in the Wage Act therefore applied in the case.

Whether commissions in a given case are “due and payable,” and whether the Wage Act applies, therefore comes down to the contract: Do the terms of the employment contract make the commissions entirely discretionary? Or, does the employee in fact earn his commission upon the happening of some event or other factor defined in the contract? Often, especially in the case of smaller employers, a commission agreement is hastily and inexpertly drafted. Among other things, such a contract may not be “integrated,” meaning that evidence of practices and understandings outside the four corners of the contract can be used to determine what the contract really means. Even if a contract is “integrated,” there can be many ambiguous provisions and disputes surrounding them. Some common important provisions are:

a clause requiring arbitration of a dispute;
choice of law provisions, which may seek to avoid the application of Massachusetts law;
windfall provisions or caps on commission;
definitions of the trigger event that gives an employee a right to a commission (for example, a signed purchase order, or income actually received by the company);
determination of the date that the commission becomes payable;
what happens to commissions in the event that the employee leaves the company;
type of sales that are included in the employee’s commission base.

There can be many points that require analysis in a commission case, and employment contracts can be complicated.

When is Suing for Unpaid Commissions Plausible?

Breach of contract by employer
If you met performance requirements
Unlawful practices by the employer
Failure by the employer to pay earned wages

Interested in Suing for Unpaid Commissions? Get in Touch with an Attorney

If you believe that your employer owes you earned commissions, however, the matter is always worth investigating because the possibility of triple damages is a huge incentive. In all but the most complicated situations, we will spend our time for free to analyze potential unpaid commission cases, so feel free to contact us at 617-338-9400 if you think you may have a case.

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Massachusetts Wage Class Actions

August 17, 2020/in Class Action, Wage/by competenow

Claims under the Massachusetts Wage Act can sometimes be brought as class actions. This usually makes sense when there is a common policy or practice of the employer that affects many employees in a similar way. There are many examples of these types of policies and practices. Just a few include:

Not paying for short breaks
Wrongfully classifying certain groups of employees as exempt from overtime
A policy requiring off-the-clock work
Not paying for inter-day travel time or mandatory travel back to the employer’s location at the end of the day
Illegal deductions from wages or tips

There can be many more examples. However, the key is usually a common policy or practice that is illegal and that affects many employees in a similar way.

The Supreme Judicial Court discussed Wage Act class actions in some detail in this case: Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337 (2008). The basic requirements of a class action are:

Numerosity: There are enough people in the class, usually more than 40 are required.
Commonality: Common questions affect all or a substantial number of the class members.
Typicality: The claims come out of the same policies, patterns or practices and are based on the same legal theories.
Fair representation by the class representatives: the plaintiff (class representative) does not have a conflict with the class, and counsel is able, qualified and experienced.
Predominance of common issues of law and fact over individual issues.
Superiority of a class action over individual cases: This is related to the predominance requirement and basically means that a class action is better than a bunch of individual cases. This has much to do with the uniformity of the policy and practices involved and the effect of those policies on the class members.

Plaintiffs who act as class representatives have a duty to the class. They have a duty to seek a just result for the entire class, not just for themselves. However, in exchange for being this instrument of common justice, class representatives often receive court-approved monetary incentive payments.

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Independent Contractor Misclassification: Delivery Drivers

August 13, 2020/in Wage/by competenow

I previously wrote about the general issue of the misclassification of employees as independent contractors. This is a hot topic these days in employment litigation in Massachusetts. In this article, I want to focus briefly on the Massachusetts independent contractor law and drivers.

In Massachusetts, as in other parts of the country, motor carrier companies have long classified their delivery drivers, taxi or livery drivers, or other drivers as independent contractors rather than employees. Utilizing this practice saves these companies significant overhead, such as health care costs and worker’s compensation premiums. In some cases, they also pass the inherent legal risks arising out of the work (i.e. compensation for property damage or personal injury) on to their drivers. However, the classification by delivery companies of their drivers as independent contractors rather than employees is illegal in most situations.

In 2004, the Massachusetts legislature enacted the law now found in Chapter 149, § 148B of the General Laws. This law makes it very difficult for any company to classify its workers as contractors. Under that law, an employer bears the burden of proving that all three of the following are true:

(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer; and
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

For a typical carrier company, like a furniture delivery company, a parcel service company, or a catering company, it is nearly impossible to demonstrate that driver deliveries fall “outside the usual course of the business” of the company. On the contrary, for a carrier company, driving and making deliveries is the business.

Until recently, carrier-employers faced with lawsuits based on Section 148B argued that they were not required to follow the Massachusetts statute because federal law preempted the state law on the subject. In the 2013 decision of Schwann v. FedEx Ground Package System, Inc. the District of Massachusetts determined that carriers operating in Massachusetts are subject to the state law and the accompanying stiff penalties of the Massachusetts Wage Act. In the case, the plaintiffs were former pick-up and delivery drivers for FedEx whom the company labeled as independent contractors. The court first determined that the Federal Aviation Administration Authorization Act of 1994 (“FAAA”) did not preempt the Massachusetts independent contractor statute, finding that the state law did not have “a sufficient relationship to its prices, routes, or services to trigger preemption.” FedEx’s argument that the state law had a “significant impact” on these business factors failed. As the court noted, “Almost by definition, state employment laws (which almost always place constraints on an employer’s freedom of contract) will impact the operating costs of a business subject to its regulation.”

The court continued to find that because the fundamental nature of FedEx’s business is shipping, the company could not successfully argue that its drivers’ work was “outside the usual course” of their business. Because it failed to meet the second prong of Section 148B, FedEx was subject to the stiff penalties of the Wage Act, including treble (triple) damages.

So what does all this mean for delivery drivers, taxi or livery drivers, and other carriers who are paid as independent contractors? Drivers and delivery personnel working for carrier companies who do the core work of the business must be classified as employees under Massachusetts state law. Companies that try to cut corners by misclassifying these employees as independent contractors are breaking the law, and are liable for all damages, including treble damages, for any wages or benefits that the driver would have been entitled to as an employee. This may include holiday pay, vacation pay, and overtime pay, depending on the individual circumstances. It may also include job expenses paid by workers.

What to do regarding Independent Contractor Misclassification

Independent contractor misclassification is a rampant problem in Massachusetts and may entitle you to significant damages if you have a good case. Contact us by phone at 617-338-9400 or by email to nfo@mass-legal.com if you want a free case evaluation on this topic.

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Massachusetts Laws Governing Final Pay

August 13, 2020/in Wage/by competenow

The basic rule regarding final pay in Massachusetts is this:

1) An employee who is terminated involuntarily must be paid in full on the day of discharge.
2) An employee who quits a job can be paid on the next regular pay date after his or her departure.

The text of the law is, “any employee discharged from such employment shall be paid in full on the day of his discharge.” M.G.L. c. 149, § 148. And the rule includes any earned vacation pay due “under an oral or written agreement” and any commission that is “definitely determined and has become due and payable.”

The rule does not apply if the employee is absent from the job site when fired. In that case, the statute states that the employee “shall be paid thereafter on demand.”

If you are terminated from a job and not paid in full the same day, it is a good idea to leave with some written evidence that you were fired and didn’t quit. This is not always possible. If you can’t get a written acknowledgment of your termination, you should at least make note of any witnesses to the fact that you were fired and didn’t quit.

If you are called or emailed while at home or otherwise away from the job site and terminated, it is smart to respond in writing (an email is fine) and ask for your final pay, confirming your address or stating that you will go to the work site to get the pay. If your employer then fails to pay you or delays, you would have a claim for treble damages.

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Tip Law in Massachusetts

August 12, 2020/in Wage/by competenow

The sharing of employee tips has led to a fair amount of controversy in Massachusetts. The Massachusetts Tip Act, M.G.L. c. 149, s. 152A, sets forth employees’ rights to tips and service charges. Here are the basic details:

Employees are entitled to their tips and to receive them the same day that they earn them.
Managers and employers cannot share in tips. This includes any waiters, counter workers, or others with any managerial responsibilities. When an employee has any managerial duties, they cannot share in a tip pool. For example, shift supervisors do not qualify as “waitstaff” eligible to participate in tip pools under provisions of the Massachusetts Tips Act, since those employees have some managerial responsibility.
Employees get “service charges,” which are anything that a customer would reasonably think would be part of the employee’s pay in lieu of or in addition to a tip. However, management can keep “house” or “administrative” fees if the customer is informed in writing about what it is and that it is not a service charge.
Tips can be pooled but only among waitstaff, bartenders, and service employees “in proportion to the service provided.”
A “service employee” is someone like a masseuse who “works in an occupation in which employees customarily receive tips or gratuities, and who provides service directly to customers or consumers, but who works in an occupation other than in food or beverage service, and who has no managerial responsibility.”

Here are some common violations of the tip law:

Tip sharing with managerial employees, including assistant managers and supervisors.
Tip sharing with expediters and other employees who don’t service customers directly. However, it is lawful to share tips with bartenders and bus people.
Employers keeping service charges or administrative/house fees without proper written disclosures.

Employees who have their tip rights violated can sue for treble damages, attorneys’ fees and costs, just like any other employee who has their rights under the Massachusetts Wage Act violated.

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Delaying or Deferring Wages is Illegal

March 27, 2020/in Wage/by competenow

The coronavirus (COVID-19) pandemic has upended life in the Commonwealth, causing serious health problems, mass layoffs, and fundamentally changing our day-to-day lives. While many “non-essential” employers have shuttered in response to Governor Baker’s COVID-19 order, many employers remain open because they constitute “essential” businesses. And while these employers may continue to operate and bring in revenue, some are delaying or deferring all or part of the wages due to workers until the economy is on better footing. For example, some employers are lowering employee’s pay with the promise that they will make up the difference at some later date or even delaying the payment of previously earned wages altogether. This is illegal.

The Massachusetts Wage Act, M.G.L. c. 149, s. 148 protects employees’ earned wages. For most employees, the statute requires that employers pay them all of their earned wages within six days of the pay period in which the wages are earned. The statute also contains a provision that makes it illegal to make any agreement to get around this timing requirement. In other words, even if an employer and employee agree to delay payment of earned wages beyond six days after the closing of a pay period, that agreement is not enforceable. A case from 2003 decided by then-Superior Court Judge Ralph Gants (now Chief Justice of the Supreme Judicial Court) illustrates this point.

In Dobin v. CIOview, Plaintiff Amy Dobin worked in a management position for CIOview, earning a salary of $75,000 per year. For months, CIOview timely paid Ms. Dobin her salary. Later, however, the company began experiencing financial difficulties. While the parties disputed the specifics of what happened next, ultimately, Ms. Dobin agreed to defer her salary on CIOview’s promise that, when the company’s finances improved, her salary would be the first thing paid after rent and utilities.

One key issue before the court was whether or not the agreement to defer Dobin’s salary was lawful in the first place. Judge Gants held that it was not. As he reasoned, Ms. Dobin’s wages “continued to accrue during the time she went without pay. Instead, the deferral agreement between Dobin and CIOview simply attempted to postpone the moment payment became due for the wages she had already earned, based on the financial ability of the company to afford those wages, which is precisely what the unambiguous language of the Wage Act forbids.” In short, even when an employee agrees to delay or defer wage payment, this is illegal.

If your employer is delaying or deferring your wages due to the COVID-19 pandemic or for any other reason, feel free to contact us for a free consultation.

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