Did you know that employers now face Massachusetts Wage Act exposure from claims brought by employees living and working out-of-state?

According to at least one judge sitting in the Massachusetts Superior Court’s Business Litigation Session, the Massachusetts Wage Act’s protections can expand beyond the borders of the Commonwealth—even when employees do not live in Massachusetts or have a central work location in the Commonwealth.

In the recent decision of Dow v. Casale (CA No. 10-1243-BLS1), Judge Lauriat, a well-respected Massachusetts trial court-level judge, ruled that Russell Dow (“Dow”), a Director of Sales who lived and worked in Florida, could sue his Massachusetts-based employer for unpaid commissions under the Massachusetts Wage Act. In reaching his decision, Judge Lauriat ruled that the Wage Act protects an employee working and living outside of Massachusetts so long as the employee had “significant contacts” with Massachusetts in connection with his or her employment. Applying the “significant contacts” analysis to Dow, the court found the following facts sufficient to permit Dow to bring a Massachusetts Wage Act claim against his employer:

  • Dow used a Massachusetts business address and a Massachusetts telephone and fax number, even though he did not have a dedicated office in Massachusetts and primarily worked out of his house in Florida
  • Many of Dow’s customers were based in Massachusetts, and Dow visited them twenty times within two years
  • Dow had almost daily telephone contact with executives at his employer, who worked at his employer’s Massachusetts headquarters
  • Any paperwork from Dow’s sales were sent from and returned to his employer’s Massachusetts location

The Dow decision continues the recent trend over the past few years to strengthen the Massachusetts Wage Act’s provisions and expand its scope. In 2008, Massachusetts became the first state in the country to award mandatory treble damages against an employer that violates Massachusetts’ wage and hour laws, regardless of the reason for the violation. Then, in the case of Juergens v. MicroGroup, Inc., a Superior Court judge found that an employee could bring a Wage Act claim for unpaid “severance pay,” despite an earlier Massachusetts Appeals Court decision ruling to the contrary.

Any organization whose employees have significant contacts with Massachusetts when performing their job duties should ensure that it is fully compliant with all of the requirements of the Massachusetts Wage Act. Employers (and certain officers of an employer) can be found liable under the Wage Act for, among other things:

  1. Failing to pay an employee the full amount of wages that are due to him/her
  2. Disputed amounts of bonuses or commissions
  3. Failing to pay an employee his/her paycheck, including a final paycheck, in a timely fashion or frequently enough
  4. Incorrectly classifying an employee as exempt from overtime wages
  5. Incorrectly calculating overtime pay. Failure to comply may result in the application of the Massachusetts Wage Act’s extremely onerous remedies, which include the imposition of mandatory treble damages, attorneys’ fees, interest at the rate of 12%, and even individual liability on the part of a company’s president, treasurer, or other manager who controls, directs, and participates to a substantial degree in formulating and determining policy of a corporation.

Contributed by Gary J. Oberstein, Managing Partner of Nixon Peabody, LLP

165753_bioimageGary J. Oberstein
Managing Partner
Nixon Peabody LLP
617-345-1231 | C 617-610-5226
www.nixonpeabody.com | @nixonpeabodyLLP