Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

40 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP earned. 214 Thus, if a pay period ends on a Friday, employees must receive all wages earned during that pay period, including overtime, by the following Thursday. While the statute does provide for payment of wages within seven days under certain circumstances, those circumstances are rare and may in fact present problems for the employer under other Massachusetts laws. For example, an employer may pay an employee within seven days of the end of the pay period if the employee worked seven days in a calendar week during the period. 215 First, an employee would need to regularly work seven days a week in order for the employer to regularly take advantage of this law. Second, if employees are working seven days a week, the employer is likely violating the Massachusetts Day of Rest laws. 216 Thus, paying employees seven days after the end of the pay period presents significant risks to employers. The payment of wages law also specifies the timing of payment upon termination of an employee. An employer must pay an employee who terminates his or her own employment for all hours worked on the next regular pay day following the end of employment. 217 In the absence of a regular pay day, the employer should pay the employee no later than the Saturday following termination. 218 When an employee’s termination is involuntary, the employer must pay the employee all wages owed, including overtime, on the day of termination. 219 At least one federal court in Massachusetts has held that if an employee is paid wages electronically (i.e., through direct deposit), an employee must receive the funds in his or her account on the day of termination; mere initiation of the direct deposit by an employer on that date is insufficient to comply with the law. 220 Because Massachusetts includes vacation pay in the definition of wages, accrued but unused vacation pay must be included in the final paycheck. 221 B. Wages Under Massachusetts Law 1. What Is Included in Wages (and What Is Not)? This question has been the subject of much debate in Massachusetts in recent years. The Wage Act specifically states that wages include commissions that are due and payable, as well as 214 Id. 215 Id. 216 See Sect ion I.C. The employer also may be violat ing the Sunday work laws. See Sect ion I.B. See also C.J. Eaton, Avoiding the Massachusetts “Blue Laws” Blues: Complying with the Complex Statutes Governing Sunday and Holiday Work, Insights Magazine (Oct . 28, 2010), available a t ht tp://www.seyfarth.com/dir_docs/news_item/e0f5172e-fc25-44ee-b47a- a89c1c6deb1a_documentupload.pdf (last visited Oct . 11, 2021). 217 Id. 218 Id. 219 Id . In Knous v. Broadridge Financial Solutions , 991 F.3d 344 (1 st Cir. 2021), the First Circuit held that the date of discharge for purposes of the Wage Act is when the employment relat ionship is severed and not when the employee is relieved of all dut ies. 220 See Clermont v. Monster Worldwide, Inc. , 102 F. Supp. 3d 353, 357 (D. Mass. 2015). 221 Massachuset t s At torney General Advisory 99/1. See also Massachusetts v. Morash , 490 U.S. 107, 109 S. Ct . 1668, 104 L.Ed. 2d 98 (1989); Elec. Data Sys. Corp. v. Attorney General, 454 Mass. 63 (2009) (deferring to At torneyGeneral Advisory 99/1 for t iming of payment s for vacat ion pay).