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

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 47 imposed no affirmative obligation on a particular employer to furnish facilities for the cashing of checks to employees, the employer was under no obligation to provide them. 260 2. Direct Deposit An increasing number of employees are paid through direct deposit. The Office of Massachusetts Commissioner of Banks, which enforces and interprets banking laws, has issued an opinion letter stating that employers may require their employees to use direct deposit for their wages, as long as each employee remains free to choose the institution at which the funds will be deposited. 261 The Office of the Commissioner finds this decision conforms with federal regulations holding that “[n]o financial institution or other person may require a consumer to establish an account for receipt of electronic fund transfers with a particular institution as a condition of employment . . . .” 262 The official federal commentary on this provision specifies that “[a]n employer may require direct deposit of salary by electronic means if employees are allowed to choose the institution that will receive the direct deposit. Alternatively, an employer may give employees the choice of having their salary deposited at a particular institution (designated by the employer) or receiving their salary by another means, such as by check or cash.” 263 3. Pay Cards Pay cards are becoming increasingly popular among employers. Massachusetts law is silent on whether employers may require employees to accept payment by pay card. Employers therefore should seek the advice of legal counsel prior to implementing mandatory payroll debit cards. 264 D. When Are Wages “Earned”? The Wage Act governs “wages earned” but does not define “earned.” Until recently, the courts provided very little guidance. In 2011, the SJC addressed this issue for the first time, holding that the word “earn” is not statutorily defined, but its plain and ordinary meaning is “[t]o acquire by labor, service, or performance,” or “[t]o do something that entitles one to a reward or result, whether it is received or not.” Where an employee has completed the labor, service, or performance required of him, therefore, according to common parlance and understanding he has “earned” his wage. 265 260 See Corraro’s Case , 380 Mass. 357, 358-59 (1980). 261 Massachuset t s Division of Banks Opinion Let ter 04-041 (June 30, 2004). 262 12 C.F.R. § 205.10(e)(2). 263 See 66 Fed. Reg. 15192 (Mar. 16, 2001). 264 As of the date of this publicat ion, several bills have been filed before the Massachuset t s legislature intended to codify the use of pay cards in the state. See, e.g. , Bill H.1941 (referred to Commit tee on Labor andWorkforce Development, March 29, 2021). 265 Awuah v. Coverall N. Am., Inc. , 460 Mass. 484, 492 (Mass. 2011) (cit ingBlack’s Law Dict ionary 584 (9th ed. 2009)). See also Kittredge , 2004 WL 1147449, at *3 (“The use of the word ‘earned’ in the statute reflect s that the work has been performed, and therefore prompt payment is due. Phrased different ly, the word ‘earned’ means that the employee’s ent itlement towages or salary