If an employee works in Massachusetts and has not been paid employment compensation owed to him; whether it be salary, hourly wage, commission, or accrued but unused vacation from an employer who has fired him, laid him off, or from whom he has resigned, the employee may be entitled to relief under the Massachusetts Payment of Wages Act. That Act requires employers who discharge an employee; whether by layoff or firing, to pay him his employment compensation on the date of discharge and provides for the tripling of that amount to be owed to him plus his attorney’s fees if it is not paid on time. This Act equally applies if the employee is a New Hampshire resident, but is employed in Massachusetts in that he is still entitled to the protections of that Act. The practical affect for employers who are considering firing someone is, if they cannot get the paycheck issued by that time, to keep the person employed for another week, but instruct him that he is not to work and to pay him his wages on his last official separation date. If that employee leaves voluntarily, his final paycheck, along with accrued but unused vacation, will be paid by the next pay period.
That Act also provides for personal liability of corporate officers. Therefore, if the company laid you off due to a cash flow crunch, if the officers making the decision not to pay were solvent, it may still be worth pursuing such a claim.
For employers, even though it is tempting to not pay compensation that you may feel an employee is not entitled to, such as commissions you believe are not due, those are wages under the Act, and if you are wrong, even innocently, you are still liable for triple the damages plus attorney’s fees. Therefore, the decision not to pay that employment compensation should only be made after consultation with your employment counsel and you should err on the side of paying. Even if it is determined that the employer acted in good faith, but was wrong, the employer would still pay 300% of the compensation found due under that Act plus the employee’s attorney’s fees.
In any event, whether you are the employer or the employee in a Massachusetts employment compensation issue, it is best to obtain counsel from an employment attorney well versed in this area of the law.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].