© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 9 Thus, to be considered discretionary, the employer must have discretion to decide whether the employee receives a bonus, as well as the amount of any bonus received. Courts generally look to the language of the agreement or policy providing for the bonus to determine whether it is discretionary.44 b. Formulaic Bonuses Appellate courts in Massachusetts have not addressed whether a non-discretionary bonus based on a formula becomes a wage once it has been earned by the employee. One trial court found that such a bonus constituted a wage, but the “bonus” was calculated based on a percentage of sales and strongly resembled a commission.45 However, a federal court dismissed a Wage Act claim premised on non-payment of a retention bonus, despite the plaintiff’s allegation that the bonus was due and unpaid.46 7. Stock Massachusetts law explicitly excludes employee stock purchase plans from the definition of wages.47 The SJC has held that the statutory language is clear and there is “no room for speculation” as to whether stock purchase plans are included in the definition of wages.48 Unvested stock, awarded as part of an employee bonus plan, does not constitute wages for the additional reason that unvested stock only becomes valuable when it vests, making it contingent upon further employment and therefore not yet earned by the employee.49 8. Expense Reimbursements The Massachusetts Court of Appeals, in the context of a retaliation case, has suggested that the failure to reimburse expenses pursuant to a company reimbursement policy could constitute a failure to pay wages under the Wage Act.50 While the court noted that the violation of a standard see Obourn v. Am. Well Corp., 115 F. Supp. 3d 301, 309 (D. Ct. 2015) (rejecting Boesel’s interpretation of Weiss and employer’s argument that a bonus contingent on continued employment was per se outside the scope of the Wage Act) (interpreting and applying Massachusetts law). See also Young v. Fidelity Rsch. & Analysis Co., 87 Mass. App. Ct. 1123, 2015 WL 2401360, *1 (May 21, 2015) (dismissing contract-based claims seeking to recover bonus payments under an employment agreement where contract “unambiguously required [the employee] to be actively employed” on certain dates, and the plaintiff was not). 44 See, e.g., Weems, 453 Mass. at 153; Boesel, 2013 WL 7083258, at *4 (“I look to the terms of the Agreement to determine whether the Annual Bonus is a ‘wage.’”). 45 Beaule v. M.S. Inserts & Fasteners Corp., Civ. No. 012056, 2004 WL 1109796 (Mass. Super. Feb. 24, 2004). As explained in Section IV.A.3, bonuses are not includable in regular rate calculations under Massachusetts law, regardless of whether they are discretionary. However, as explained in Sections IV.A.1-2, some bonuses are includable in regular rate calculations under federal law. 46 Rooney v. Leerink Partners, LLC, Civ. No. 1:24-cv-11165-AK, 2025 WL 417785 (D. Mass. Feb. 6, 2025). 47 M.G.L. ch. 154, § 8. 48 Weems, 453 Mass. at 157. 49 Id. See also Harrison v. NetCentric Corp., 433 Mass. 465, 473-74 (2001). 50 Fraelick v. PerkettPR, Inc., 83 Mass. App. Ct. 698, 706-8 (2013). See also Furtado v. Republic Parking Sys., LLC, Civ. No. 19cv-11481-DJC, 2020 WL 996849, *4 (D. Mass. Mar. 2, 2020) (recognizing that SJC “has not addressed whether travel expenses are considered wages” and refusing to dismiss claim for non-reimbursement of mileage); Serebrennikov v. Proxet Grp. LLC, No.
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