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

44 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP time off per year might specify that vacation accrues at a rate of one and one-half days per month on the last day of the month, and that “other” time accrues at a rate of one day per month. An employer should set accrual rates within very specific time frames because “a policy that provides for employees to earn a given amount of vacation ‘a year,’ ‘per year,’ ‘on their anniversary date,’ or ‘every six months’ is not clear . . . and subject to confusion concerning [the accrual] start and end dates. Where an employer’s policy is ambiguous, the actual time earned by the employee will be pro-rated according to the time period in which the employee actually works.” 245 An employer may also include a probationary period in its vacation policy, which stipulates that an employee will begin to accrue vacation time only after a set period of time, such as six months. Here again, the time frame should be clearly indicated. d. Changes to Vacation Policies An employer may amend the terms of its vacation policy, and any other condition of employment affecting wages, at any time. 246 Any such amendments must be prospective in nature, and employees must be given advance notice regarding the changes. 247 A new policy is more likely to be permissible if the employer gives the employees a copy of policy changes in advance and requires that each employee acknowledge in writing his or her understanding of the changes. 248 If a new policy will result in a forfeiture of accrued but unused vacation days, employees must be given a reasonable opportunity to use the time before it is forfeited. 4. Severance Payments The Wage Act does not apply to severance payments. These payments are not referenced in the language of the statute, and the Massachusetts Appeals Court has held that severance benefits are not wages because such pay is not “earned,” but rather is contingent upon termination. 249 Thus, 245 Id. 246 Id . 247 Id . 248 Id. 249 Prozinski v. Ne. Real Estate Servs., LLC. , 59 Mass. App. Ct . 599, 603 (2003). See also Platt v. Traber , 85 Mass. App. Ct . 1114, 2014 WL 1464268, at *1 (Apr. 16, 2014) (“Severance pay is not covered by the [Wage Act ].”) (cit ing, inter alia , Prozinski , 59 Mass. App. Ct . at 605); Scharf v. Isovia, Inc. , 67 Mass. App. Ct . 1121, 2006 WL 3780747, at *1 (Dec. 26, 2006) (same) (cit ing Prozinski , 59 Mass. App. Ct . at 603). The SJC has cited to the Prozinski decision with approval twice. See Weems v. Citigroup Inc. , 453 Mass. 147, 151 (2009) (“Our appellate courts have held that the [Wage Act ] does not cover . . . severance pay.”) (cit ing Prozinski , 59 Mass. App. Ct . at 605); Calixto v. Coughlin , 481 Mass. 157, 162 (2018) (“severance pay is not mentioned in the Wage Act , and it has not been deemed an ‘earned wage’ under the act”) (cit ing Prozinski , 59 Mass. App. Ct . at 605). Every t rial court to address the issue with the except ion of one much crit icized and readily dist inguishable out lier has reached the same conclusion. See Birnbach v. Antenna Software, Inc. , 2014 WL 2945869, at *3 (D. Mass. June 26, 2014); Discipio v. Anacorp, Inc. , 831 F. Supp. 2d 392, 396 (D. Mass. 2011) (Casper, J.); Farrell v. Farrell Sports Concepts, Inc. , 2012 WL 1994659, at *1 (Mass. Super. Ct . Apr. 6, 2012) (Inge, J.); Doucot v. IDS Scheer, Inc. , 734 F. Supp. 2d 172, 192-93 (D. Mass. 2010) (Bowler, J.); Fitzgerald v. Chipwrights Design, Inc. , 2005 WL 1869151, at *2-3 (Mass. Super. Ct . July 1, 2005) (Kern, J.); Kittredge v. McNerney , 2004 WL 1147449, at *3-4 (Mass. Super. Ct . May 7, 2004) (Gant s, J.). But see Juergens v. Microgroup, Inc. , 2011 WL 1020856, at *2 (Mass. Super. Ct . Jan. 28, 2011) (holding that severance is wages). Trial court decisions that have come after Juergens have recognized that the case is inconsistent with appellate authority. Birnbach , 2014WL 2945869, at n.1 (reject ing Juergens as inconsistent with Platt ); Discipio , 831 F. Supp. 2d at 396 (reject ing Juergens as inconsistent with Prozinski ); Farrell , 2012 WL 1994659, at *1 (same). But see Rosen v. TMS, Inc. , 2011 WL 2632186, at *1 n.13 (D. Mass. June 30, 2011) (not ing that