Employers Must Pay Commissioned Employees Separately at Time and a Half for Sunday Hours and Any Hours Over 40 Per Week

The Massachusetts Supreme Judicial Court has answered two questions that were certified to it by the U.S. District Court for the District of Massachusetts in Sullivan v. Sleepy’s LLC. First, the Massachusetts Supreme Judicial Court (“SJC”) was asked whether retail sales employees (commissioned employees) who are paid 100% of their pay by draw and/or commission are entitled to separate and additional pay at time and a half (1.5x) the Massachusetts minimum wage for any hours worked over 40 hours per week. And second, the SJC was asked whether 100% commissioned employees are entitled to separate and additional pay at time and a half the minimum wage for hours worked on Sundays.

The SJC answered “yes” to both questions. The Massachusetts Wage Act, Overtime Statute, and Sunday Pay Statute require that employers pay to 100% commissioned inside sales employees, in addition to draws or commissions, separate and additional pay at overtime rates for any hours worked over 40 per week and/or for hours worked on Sundays.

The SJC has further clarified that draws and commissions may not be retroactively allocated as hourly and overtime wages and Sunday pay to comply with this requirement. This is true even if the amount of commissions paid in a given week exceeded what that salesperson’s pay would have been if it had been calculated at minimum wage for the 40 hours plus time and a half for the additional or Sunday hours.

If you worked as an inside salesperson or commissioned employee on a 100% commission basis and were required to work more than 40 hours a week or Sundays, but were not paid separately for those hours at overtime rates, you should contact an attorney to make sure that your rights are protected. You might be owed back pay – or even punitive damages of three times that back pay.

Culik Law is a Boston, Massachusetts Employment Law Firm. Our attorneys represent employees in employment law disputes in Massachusetts, including for unpaid wages or wage and hour violations, in employment discrimination or wrongful termination claims and in disputes over severance agreements, employment contracts, and non-compete agreements. If you have an employment related issue, contact us for a consultation.


Kristin Thurbide

Attorney Kristin Thurbide is an attorney at Culik Law and represents clients in consumer financial protection cases. Kristin advocates for individuals in Massachusetts, helping them with mortgage and loan modification issues, foreclosure defense, mortgage litigation, debt collection defense and lawsuits, Fair Debt Collection Practices Act violations, and other consumer protection matters.