Unpaid Commissions in Massachusetts
In Massachusetts wages are regulated by the Wage Act, which defines “wages” broadly to include salary, hourly pay, bonuses, commissions, vacation, and other forms of “pay”. Thus, a failure to pay a commission, is analogous to the failure to pay any other wage under the Act — triggering civil liability exposure, triple damages, and attorney’s fees.
Commissions are an area of confusion for a lot of employees/employers. 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). In order for the commission to be calculable, all the mathematical factors needed to calculate the commission must be known or knowable.
Companies can set the conditions in which a commission is due and payable. An employer will usually put this in writing and make sure all factors are included as well as the time of payment. However, if an employer is silent on the terms of the commissions, common actions and company practices will be used to determine when commissions are due and payable.
In contrast, certain bonuses, are generally not considered wages for the purposes of finding employer’s liable in nonpayment of such compensation as was decided in Suominen v. Goodman Indus. Equities Mgmt. Group, LLC, 78 Mass. App. Ct. 723, (2011) The court reasoned that since a bonus is a stake in the […]
Restaurant Workers, Overtime, and Undocumented Workers
If you work at a restaurant or bar in Massachusetts, are an undocumented worker, illegal immigrant, and are not happy with the way your employer has treated you – call us now. Restaurants often pay undocumented workers in Massachusetts in cash, and are misclassifying their workers as “independent contractors,” even though in the eyes of the MA Wage Act, you are an employee. Your immigration status is completely irrelevant; if you are an employee, and not exempt for some reason, you are entitled to overtime pay for every hour you work over 40 hours each week.
Most lawyers misunderstand the current state of overtime pay for restaurant workers – while Massachusetts state law may have an exemption, the federal component does not. So, most restaurants must pay you at an overtime rate for all overtime wages.
You May be Entitled to three times your damages:
- Are you an undocumented worker, an illegal immigrant, working in Massachusetts?
- Do you work over forty (40) hours each week, but are not paid extra for overtime?
- Do you work long hours?
- Do you receive a 1099 from your employer?
- Does your employer not take taxes our of your pay, or are you paid “under-the-table”?
- Are tips added to each check, but you don’t get your share?
- Are you required to pool or share tips with management? With the company? With other non-servers?
Wage Act Introduction
The Wage Act
The Wage Act is one of the most significant statutes that protects the rights of employees (whether labelled an “independent contractor” or not). It requires employers to pay wages on time, pay overtime where applicable, and contains serious remedies where there are violations — namely, potential triple damages and an award of attorney’s fees. Because the remedies are so strict, there is also a short statute of limitations, or window of opportunity, during which you must bring your cause of action; delay will negatively impact your rights. So, call now for a FREE consultation with an Attorney who can evaluate your situation.
Overtime Pay
If you work more than forty (40) hours in any given week, you must be paid one and one half times your regular rate for every hour in excess of forty hours. Believe it or not, this rule applies whether you are paid on a per-job or piecework basis, and applies even if your employer attempts to call you an “independent contractor.” You may be entitled to overtime when adding on-call, waiting, or other off the clock time. If you drive a truck and are paid per gallon delivered, you may be entitled to overtime pay.
The 1099 Form
Many employers attempt to incorrectly classify workers as “independent contractors” in order to avoid the important safeguards of the Wage Act, and avoid paying unpaid overtime and wages. However, it is extremely difficult to be classified as an independent contractor here in Massachusetts. Even […]
Massachusetts Overtime Exemptions
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 […]
Employers (not employees) Must Track Hours
Under Massachusetts law, it is the duty of an employer to ensure that accurate records are kept and maintained for each employee as to “the hours worked each day and each week by each employee.” M. G. L. ch. 151, § 15. M. G. L. ch. 151, § 15. Tomei v. Corix Utilities (U.S.) Inc., CIV.A. 07-CV-11928DP, 2009 WL 2982775 (D. Mass. Sept. 14, 2009).
The FLSA requires no specific format of the records, but does require that the records include certain identifying information about the employees wages and hours. The following is a listing of the basic records that an employer must maintain accurately:
Employee’s full name and social security number.
Address, including zip code.
Birth date, if younger than 19.
Sex and occupation.
Time and day of week when employee’s workweek begins.
Hours worked each day.
Total hours worked each workweek.
Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”, “piecework”)
Regular hourly pay rate.
Total daily or weekly straight-time earnings.
Total overtime earnings for the workweek.
All additions to or deductions from the employee’s wages.
Total wages paid each pay period.
Date of payment and the pay period covered by the payment.
How Long Do Employers Have to Keep Records: Employers must keep all payroll records, collective bargaining agreements, sales and purchase records for at least three years. The records must show what wage computations are based on and should be kept for two years. For example all time cards and piece work tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages should be […]
Home Improvement Contractor Disputes
The nature of the contractor-homeowner relationship is unique, and one that can invariably lead to heated disputes. Homeowners generally feel at a disadvantage, due to the specialized knowledge required to estimate costs, time, and complete the project. Contractors often have difficulty accurately predicting costs, and change-orders or modifications arise. An attorney can be an ally for any project, and a proactive approach can prevent disputes.
With respect to large scale projects, additions, and renovations, homeowners should consult an attorney prior to signing or negotiating contracts. Legal fees paid at the outset, can potentially save money, time, and stress in the event of a dispute. The benefits of preventative legal oversight cannot be overstated. A small expenditure at the onset is far more effective than addressing a dispute after it has occurred. For smaller projects, a little preparation can ensure your project is more likely to proceed in a satisfactory manner.
Homeowners in the Commonwealth have significant rights pursuant to the Home Improvement Contractor Act. For example, the following is a brief list of contractor requirements:
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- All contracts over $1,000.00 MUST be in writing.
- The contract must include the contractor’s name, start and completion dates, description of the work, total contract amount, and signatures of all parties
- Contractor MUST NOT demand a deposit greater than 1/3rd of the contract total
- Final payments cannot be demanded until all parties are “satisfied”
- The contract must list all required permits
- The contractor’s registration number MUST appear on the contract, the permits, and any advertising
- The contractor MUST adhere to […]
Debt Collection, Out-of-state Judgments, and Supplementary Process
Commercial Debt Collection
Bace Law Group, LLC pursues the collection of unpaid receivables, unpaid invoices, and debts in Massachusetts on behalf of businesses, large and small. In this economic climate, collecting debts in Massachusetts and ensuring continued cash flow has never been more important. If you have unpaid invoices, unpaid receivables, collecting unpaid invoices, or have unsuccessfully used a debt collection agency – we want to talk to you.
We pursue debt collection claims on the commercial side aggressively, investigating the debtor’s bank account information, real estate holdings, and employment situation. Our contingency fee agreements are tailored to generally include a lower fee if our Massachusetts collections attorneys can obtain a successful recovery prior to filing litigation. Thus, we always attempt to reach out to the debtor prior to filing litigation; it has been argued these tactics are a waste of time, however, at Bace Law Group, LLC we almost always attempt to first bring the debtor to the negotiation table. It is during these pre-litigation negotiations that vital information about the likelihood of success can often be obtained.
Foreign Judgments – Out-of-State Judgments – Judgments from another State
Collecting a Judgment that was issued from a court in a state other than Massachusetts actually invokes Constitutional safeguards, namely, the Full Faith and Credit Clause. Thus, enforcing foreign Judgments remain favorite cases of Bace Law Group, LLC. If your debtor has moved to Massachusetts, has assets in Massachusetts, or is currently employed in Massachusetts, but you are holding a Judgment from another state – we want to talk […]
Former Bridgetenders Sue Over Unpaid Wages in Gloucester
Read the full article Here.
Former bridgetenders sue over wages
Three former Blynman Bridge bridgetenders are suing their former employer, claiming East Boston-based Cora Operations Inc. failed to pay them adequately. In fact, they say, only a fraction of what state law dictates for public works jobs.
Rockport residents Peter Billert and Frank Favalora, along with Beverly resident Troy Raymond, claim in their suit filed in Essex County Superior Court that Cora Operations failed to pay them at a “minimum prevailing wage rate” as required of employers on public works projects.
Instead, they said, Cora Operations, which has contracted with the Massachusetts Department of Transportation to operate the Western Avenue span also known as the Cut Bridge, set their pay at a maximum of $13.50 per hour.
The lawsuit, which will be heard in Superior Court in Newburyport, also names John V. Zirpolo as a defendant. The suit describes Zirpolo as the president, treasurer and secretary of Cora Operations. Zirpolo did not return phone calls Friday seeking comment.
The suit claims the three bridgetenders — all of whom ceased working at Cora in 2015 — should have been paid at a higher rate mandated by state statute than the hourly rate set by Cora.
“Cora contracted with the Massachusetts Department of Transportation through multiple public works contracts to provide maintenance, repair and construction work on the (Blynman) Bridge,” the lawsuit stated. “Each of the contracts between Cora and MassDOT for work at the bridge were public works projects and subject to the Massachusetts Prevailing Wage Law.”
Under that law, wages for public […]