Recently, in a case of first impression, Judge Angel Kelley of the United States District Court for the District of Massachusetts confronted a “seemingly simple” question on a motion to dismiss: does a difference of one day matter under the Wage Act? 

The plaintiff in the putative class action Turgut v. Hitachi Rail STS USA, Inc. contended that, yes, a single day matters. The engineering manager claimed that his employer (Hitachi) violated the Wage Act by waiting seven days to pay its employees, rather than paying them within six days after the close of the payroll period. However, Hitachi’s approach was not without support, because, although part of the Wage Act appeared to require employers to pay within six days, a separate part of the statute seemed to allow seven days for payment for some workers, including those “employed” for all seven days of the week. 

Conflicting Clauses Found Ambiguous

The Wage Act sets forth a six-day deadline for workers employed five or six days in a week, and a seven-day deadline for employees working less than five days, as well as those working seven days a week:

“Every person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week, or to within seven days of the termination of the pay period during which the wages were earned if such employee is employed seven days in a calendar week, or in the case of an employee who has worked for a period of less than five days, hereinafter called a casual employee, shall, within seven days after the termination of such period. . .”

Focusing on the statute’s use of the word “employed,” Hitachi argued that salaried employees should be considered “employed” for all seven days a week, regardless of how many days they actually work. Thus, according to Hitachi, the seven-day deadline would apply to salaried employees.

However, a 1960 amendment added a provision that muddied the waters by indicating that salaried employees cannot remain unpaid for more than six days:

“[S]uch wages together with any wages already earned and due under this section, if any, may be paid weekly, bi-weekly, or semi-monthly to a salaried employee, but in no event shall wages remain unpaid by an employer for more than six days from the termination of the pay period in which such wages were earned by the employee.”

According to the plaintiff, the above clause indicates that the seven-day deadline only applies to those working less than five days a week, and non-salaried workers working seven days a week.

The court found the plain text of the two parts of the statute ambiguous. A worker could “work” five days in one week and be “employed” all seven days on salary. Or, a worker can work all seven days but not be employed as a salaried worker.

Because it found the plain text ambiguous, the court extended its analysis beyond the text and looked to the canons of statutory construction, as well as the legislative history of the statute, to interpret the intent of the legislature.

Canons of Construction

The court noted that, were it to interpret the Wage Act in a way that disregards the 1960 amendment, such an interpretation would violate the canon of construction that suggests that every word and provision in a statute should be given effect and not rendered superfluous. The court further concluded that the first part of the Wage Act was the general provision, while the 1960 amendment was the more specific provision, particularly addressing salaried employees. With these canons in mind, the court rejected the Hitachi’s interpretation, because to find salaried employees “employed” for all seven days a week and thus subject to the seven-day deadline would require the court to ignore the 1960 amendment that specifically set a six-day payment deadline for salaried workers. 

Legislative History, Case Law and Writings from the Attorney General 

Despite its rejection of Hitachi’s main argument, the court found that the canons of construction did not conclusively resolve the ambiguity in the statute, because it was still unclear why there is a provision that allows for payments within seven days. In its efforts to resolve this remaining ambiguity, the court presented a long list of amendments to the Wage Act, which has been changed over 30 times, and noted that it affords workers a private right of action, as well as treble damages and attorney’s fees. The court found that the significant “teeth” of the statute reflected the legislature’s keen interest in the rights of workers to receive timely pay. 

Further, in its survey of case law, the court found that no previous opinions addressed the exact question at hand. A table on the attorney general’s website setting forth deadlines for payment of wages was considered worthy of deference, but unhelpful in this instance as it applied to hourly, and not the question of salaried employees. The court did, however, find instructive a 1956 letter from Attorney General George Feingold urging a state agency to include Sunday in the computation of the six-day Wage Act pay period–he reasoned that lengthening all periods to seven days would wrongly render the six-day period meaningless. In the court’s view, Feingold’s letter served to support the principle that all parts of the statute should be given effect when possible.

Conclusion and Opinion 

Ultimately, the court found that the seven-day provision applies only applies to 1) hourly workers who work all seven days of a calendar week, and 2) hourly workers who work less than five days a week. All salaried workers, and hourly employees who work five or six days a week, must be paid within six days. 

It was not clear whether the plaintiff was a salaried or hourly employee, but because he was alleged to have worked only five days a week, the six-day deadline applied. So the court denied Hitachi’s motion to dismiss, although the court praised the high quality of Hitachi’s briefing on the matter.

The court also rejected the contention that its finding was contrary to the spirit of the statute in that it afforded salaried employees greater protection than hourly employees, observing that the “court is not permitted to second guess the legislature’s decision to vary payment deadlines based on the number of days worked.” And although the opinion addressed the significance of a single day, the court noted the importance of such a single day to workers living from paycheck to paycheck. 

Wage Payment Schedules in Other Jurisdictions

In Footnote Ten of the court’s opinion, the court noted that other jurisdictions have similar statutes that require payment of wages within days of pay period worked. Vermont requires payment within six days. See 21 VT Stats § 342. Arizona requires payment within five. Ariz. Rev. Stat. § 23-351.

In other states, wage payment schedules differ by the type of work or employment classification. In New York, the frequency of payments is governed by Labor Law Section 191, which requires payment in seven calendar days for manual workers (Section 191(a)), for commissioned salespeople, not less frequently than once a month, and not later than the last day of the month following the month in which wages are earned (Section 191(c)), and for clerical workers, not less frequently than semi-monthly (section 191(d)). Failure to pay on time in New York can give rise to claims including liquidated damages, attorney’s fees, and interest. Phillips v. Max Finkelstein, Inc., 73 Misc. 3d 1, 3 (N.Y. App. Term. 2021).

Lessons for Employers

For employers in Massachusetts, the opinion in Turgut reinforces the need to pay close attention to the details of payment terms for employees, given the unyielding, if opaque, nature of the Massachusetts Wage Act, and the “teeth” (such as treble damages and attorney’s fees) with which the legislature has armed it.