Unpaid Overtime, Unpaid Wages and Unpaid Commission Payments


Unless you are a particular type of employee who is exempt from the overtime requirement, under both state and federal law, for every hour that you work in excess of 40 for any given week, you are entitled to an overtime premium pay of one and one half times (1.5x or “time and a half”) your regular hourly rate.

Your employer must pay your earned wages weekly or every two (2) weeks. An employer must pay employees who work five (5) or six (6) days in a calendar week within six (6) days of the end of the pay period. If, for example, your employer decides that you don’t “deserve” a particular weeks’ wages, and fails to pay you within six days of the end of the pay period – that may be a violation of the MA Wage Act, entitling you to three times your damages plus an award of reasonable attorney’s fees.

Further, the courts in Massachusetts have recently determined that the Wage Act applies to all commissions as long as they are “due and payable” and “definitely determined”. A commission is “definitely determined” when it is can be arithmetically calculated (The SJC in Wiedmann v. Bradford Group, Inc. 444 Mass. 698 (2005) established this standard). Therefore, failure to pay an earned commissions, may be a violation of the MA Wage Act, entitling you to three times your damages plus an award of reasonable attorney’s fees.


Under both federal and state law, in general, there exists an Executive Exemption, Outside Sales, Administrative Exemption, Professional Exemption, and Creative Professional Exemption.

Employees whose primary duty is making sales, or obtaining contracts for services, and who regularly work away from their employer’s place of business may not be entitled to overtime via the Outside Sales Exemption.

Employees who earn more than $455 per week, who manage the business (or a subgroup), who regularly supervise two or more other employees, and have the authority to hire and fire – may not be entitled to overtime via the Executive Exemption.

Employees who earn more than $455 per week, who perform work requiring “advanced knowledge,” in a field of science or learning, may not be entitled to overtime via the Professional Exemption.

Employees who earn more than $455 per week, who perform work that requires invention, imagination, originality, or talent in a artistic field, may not be entitled to overtime via the Creative Professional Exemption.

Employees who earn more than $455 per week, whose primary duty is office or non-manual work directly related to the managerial or general business operations, may not be entitled to overtime via the Administrative Exemption this exemption, is interpreted broadly, and applies to a wide-array of workers.


If you work in any of the following capacities, you may not be entitled to overtime under the state law; however, this determination can only be made after a Massachusetts employment attorney reviews the facts and circumstances of your case:

  • as a janitor or caretaker of residential property
  • as a golf caddy, newsboy or child actor or performer.
  • as a bona fide executive, or administrative or professional person or qualified trainee for such position earning more than eighty dollars per week.
  • as an outside salesman or outside buyer.
  • as a learner, apprentice or handicapped person under a special license as provided in section nine.
  • as a fisherman or as a person employed in the catching or taking of any kind of fish, shellfish or other aquatic forms of animal and vegetable life.
  • as a switchboard operator in a public telephone exchange.
  • as a driver or helper on a truck with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section two hundred and four of the motor carrier act of nineteen hundred and thirty-five, or as employee of an employer subject to the provisions of Part 1 of the Interstate Commerce Act or subject to title II of the Railway Labor Act.
  • in a seasonal business.
  • as a seaman.
  • by an employer licensed and regulated pursuant to chapter one hundred and fifty-nine A.
  • in a hotel, motel, motor court or like establishment.
  • in a gasoline station.
  • in a restaurant.
  • as a garageman, which term shall not include a parking lot attendant.
  • in a hospital, sanitorium, convalescent or nursing home, infirmary, rest home or charitable home for the aged.
  • in a non-profit school or college.
  • in a summer camp operated by a non-profit charitable corporation.
  • as a laborer engaged in agriculture and farming on a farm.
  • in an amusement park containing a permanent aggregation of amusement devices, games, shows, and other attractions operated during a period or accumulated periods not in excess of one hundred and fifty days in any one year.
  • /ul


The law in Massachusetts entitles you to triple damages.  A Judge/jury cannot decide to apply the triple damages penalty in one case, and not apply it in another.  If a wage and hour violations exists (such as a failure to pay you overtime), the triple damages penalty is non-discretionary, which means it must be applied in every case.  If you are owed $1.00 in damages, you must be awarded $3.00, plus an award of reasonable attorney’s fees.

Given how strict the penalty is, many employers are willing to resolve a case quickly, without the need to litigation.


Misclassification as an Independent Contractor


In MA, misclassifying employees as “independent contractors,” is incredibly common. From truck drivers, logistics workers, private charter drivers, oil truck drivers, restaurant laborers, and many other industries, this practice runs rampant. If your employer calls you an independent contractor, and pays you via form 1099 – you may be an employee, even if you signed a contract, even if you agreed to the incorrect classification, and even if you made more money as an independent contractor.


In order to be a correctly, and lawfully classified “independent contractor” in Massachusetts, all three of the following must be true

1.  You own and operate your own business; and,
2.  The work you’re doing is work that is not work the company/employer performs in their regular course of business; and,

3.  You are free from the company/employer’s direction and control in how you go about performing the work.

If you can answer “NO” to any of the three prongs above, you are an employee.  You are an employee even if you signed a contract that says something different.  You are an employee even if you like the idea of being an independent contractor.  You are an employee even if you agreed to be an “independent contractor”.


One of the reasons that employers call certain workers, truck drivers, logistics laborers “independent contractors” is that they think it allows them to avoid paying them overtime, and all the other benefits of correctly classified employment.

Non-exempt employees are entitled to overtime pay for every hour they work over 40 in a given week – by misclassifying you, your employer is avoiding paying you that premium.

Employees generally receive retirement benefits, and health benefits – by misclassifying you, your employer is denying you these benefits while giving them to correctly classified employees who often work right alongside you performing the exact same job.

Generally, employees do not pay for “business expenses,” such as gas, maintenance on vehicles, supplies, etc…By misclassifying you, your employer may be attempting to pass the costs of doing business on to you.

The law in Massachusetts entitles you to triple damages.  A Judge/jury cannot decide to apply the triple damages penalty in one case, and not apply it in another.  If a wage and hour violations exists (such as a failure to pay you overtime), the triple damages penalty is non-discretionary, which means it must be applied in every case.  If you are owed $1.00 in damages, you must be awarded $3.00, plus an award of reasonable attorney’s fees.

Given how strict the penalty is, many employers are willing to resolve a case quickly, without the need to litigation.