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

48 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP Citing to this language, the SJC recently reiterated that to be earned, the wages must be for work actually performed, as opposed to work that would or should have been performed. 266 With respect to commissions, as explained in Section III.B.2, they are earned when they are “definitely determined” and “due and payable.” Commissions meet these criteria if all contingencies that must occur for the employee to receive the commissions have occurred and the amount due can be precisely ascertained. Whether those criteria have been met is an oft litigated issue, and the guidance on this subject is less than clear. Employers should speak with their employment counsel if they have any questions or concerns regarding whether commissions or other wages are “earned.” E. What Deductions Can an Employer Make from an Employee’s Wages? Employers are limited in the deductions they can make from employee paychecks. The only permissible deductions from the basic minimum wage are those required by law and those allowed for lodging and meals. 267 1. Mandatory Deductions Both Massachusetts and federal law require mandatory deductions from employee wages for: (a) state and federal income tax withholdings; and (b) contributions, imposed on employees and employers, made in compliance with the Federal Insurance Contributions Act (FICA), including deductions for Social Security and Medicare. 268 All employers must require each of their employees to complete Form W-4. For any employee who has not completed this form, the employer must withhold federal income taxes from the employee’s wages as if the employee claimed only one withholding allowance—or two withholding allowances if the most recent W-4 shows that the employee is married. 269 payment s derives from his performance of the work for which he was employed.”); Fitzgerald , 2005 WL 1869151, at *2 (“ [t]he use of the word ‘earned’ in the statute reflect s that the work has been performed”); Meschino v. Frazier Indus. Co. , 2016 WL 4083342, at *4 (D. Mass. Aug. 1, 2016) (“ ’[e]arned’ is not statutorily defined, but has been interpreted as describing the moment ‘[when] an employee has completed the labor, service, or performance required of him.’”) (cit ing Awuah , 460 Mass. at 492). 266 See Calixto v. Coughlin , 481 Mass. 157, 160-61 (2018) (holding that plaint iffs could not bring a Wage Act claim based on an employer’s failure to provide not ice under the federal WARN Act ); see also Condez v. Town of Dartmouth , 96 Mass. App. Ct . 1109, 2019 WL 6130484, at *2 (Nov. 19, 2019) (“It is not a Wage Act violat ion to reduce an employee's salary by ordering him to take a number of unpaid furlough days . . . Where no service was actually performed, there can be no right to wages for purposes of the Wage Act”). 267 454 C.M.R. § 27.05(1). 268 26 U.S.C. § 3102; M.G.L. ch. 62B, § 2. 269 M.G.L. ch. 62, § 3.