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SJC-12542

   LAURITA SULLIVAN1 & another2   vs.   SLEEPY'S LLC & another.3



            Suffolk.     February 4, 2019. - May 8, 2019.

   Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                             Kafker, JJ.


Massachusetts Wage Act. Labor, Wages, Overtime compensation,
     Minimum wage. Minimum Wage.



     Certification of questions of law to the Supreme Judicial
Court by the United States District Court for the District of
Massachusetts.


     Stephen S. Churchill (James D. Livingstone also present)
for the plaintiffs.
     Diane M. Saunders for the defendants.
     Joshua D. Nadreau, Joseph W. Ambash, & Jeffrey A. Fritz,
for Massachusetts State Automobile Dealers Association &
another, amici curiae, submitted a brief.




     1 Individually and on behalf of all others similarly
situated.

     2 Carlos Bryant, individually and on behalf of all others
similarly situated.

     3   Mattress Firm, Inc.
                                                                   2


     KAFKER, J.   The issue presented is whether retail

salespeople who are paid entirely in commissions or draws (i.e.,

advances on commissions) are entitled to additional overtime or

Sunday pay pursuant to G. L. c. 151, § 1A (overtime statute),

and G. L. c. 136, § 6 (50) (Sunday pay statute).    More

particularly, we consider whether the defendant employers

satisfied their obligations under these statutes when they paid

draws or commissions that always equaled or exceeded the minimum

wage for the plaintiff employees' first forty hours of work and

one and one-half times the minimum wage for all hours worked

over forty hours or on Sunday.    We conclude that draws and

commissions cannot be retroactively allocated as hourly and

overtime wages and Sunday pay even if these draws and

commissions equaled or exceeded the minimum wage for the

employees' first forty hours of work and one and one-half times

the minimum wage for all hours worked over forty hours or on

Sunday.    Rather, the employees are entitled to separate and

additional payments of one and one-half times the minimum wage

for every hour the employees worked over forty hours or on

Sunday.4




     4 We acknowledge the amicus brief submitted in support of
the defendants by the Massachusetts State Automobile Dealers
Association and the Retailers Association of Massachusetts.
                                                                    3


     This case comes to us in the form of the following

certified questions of first impression from the United States

District Court for the District of Massachusetts:

     "1. If a [one hundred percent] commission inside sales
     employee[5] works more than forty hours in a given work
     week, is the employee entitled to any additional
     compensation specifically for overtime hours worked when
     the employee's total compensation (through draws[6] and
     commissions) for that workweek is equal to or greater than
     1.5 times the employee's regular rate or at least 1.5 times
     the minimum wage for all hours worked over [forty] hours in
     a workweek? If additional compensation is due, what is the
     employee's regular rate for purposes of calculating
     overtime pay?"

     We answer this question "yes."   We further explain that the

employee is entitled to one and one-half times the minimum wage

times the number of hours over forty that the employee works in

a work week.

     "2. If a [one hundred percent] commission inside sales
     employee works on a Sunday in a given workweek, is the
     employee entitled to any additional compensation for Sunday
     premium pay when the employee's total compensation (through
     draws and commissions) for that workweek compensates the
     employee in an amount equal to or greater than 1.5 times
     the employee's regular rate or at least 1.5 times the
     minimum wage for all Sunday hours worked? If additional
     compensation is due, what is the employee's regular rate
     for purposes of Sunday premium pay?"




     5 An "inside sales employee" refers to an employee who makes
sales at the employer's place of business (i.e., a shop or
store). M. Snyder, Compensation and Benefits § 16:66 (2005).

     6 "A 'draw' is a type of salary advance or loan intended to
cover a salesperson's living costs." Snyder, Compensation and
Benefits, supra at § 3:5.
                                                                     4


     We answer this question "yes."    We further explain that the

employee is entitled to one and one-half times the minimum wage

times the number of hours the employee works on Sunday.

     "The court also welcomes the advice of the Supreme Judicial
     Court on any other questions of Massachusetts law it deems
     material to the present action."

     Any additional guidance is provided in the course of

answering the two questions presented.

     1.   Facts.   We take the following facts from the parties'

stipulated facts and other uncontested material in the record.

The plaintiff employees worked as salespeople at retail stores

operated by the defendant employers between 2014 and 2016.    The

parties have stipulated that the employees were paid on a "[one

hundred percent] commission" basis:    their wages took the form

of a recoverable draw of $125 per day, and any sales commissions

in excess of the draw.7   In other words, as their daily pay the

employees received the greater of (1) the $125 recoverable draw

or (2) earned commissions in excess of $125.    On at least one

occasion, the employees worked more than forty hours in a week,

and they also worked on at least one Sunday.    On these


     7 Although the parties stipulated that the employees worked
on a "[one hundred percent] commission" basis, they were not
paid on a "commission-only" plan, in which a "salesperson's
entire income is derived through commissions." Snyder,
Compensation and Benefits, supra at § 3:4. Rather, they were
paid on a "commission-plus-draw" plan involving a "recoverable
draw," which is an advance that the employee must pay back once
he or she has earned sufficient commission. Id. at § 3:5.
                                                                    5


occasions, the employers did not pay the employees any

additional compensation beyond the recoverable daily draw and

any commissions.   The amount of compensation the employees

received, however, always equaled or exceeded the minimum wage

times the number of hours they worked up to forty hours, plus

one and one-half times the number of hours they worked over

forty hours or on Sunday.

    In September 2017, the employees brought suit in the

Superior Court, alleging that the employers' payment policies

violated G. L. c. 149, § 148 (Wage Act), as well as the overtime

and Sunday pay statutes.    The employers argued as affirmative

defenses that the employees had received all compensation to

which they were entitled and specifically that their claims were

offset by other compensation that they had received.     The

employers removed the case to Federal court based on the

diversity of citizenship of the parties.

    2.   Discussion.   a.   Relevant statutes and regulations.     We

begin with the text of the relevant statutes.    With exceptions

not relevant here, G. L. c. 151, § 1A, the overtime statute,

provides:

    "[N]o employer in the commonwealth shall employ any of his
    employees in an occupation . . . for a work week longer
    than forty hours, unless such employee receives
    compensation for his employment in excess of forty hours at
    a rate not less than one and one half times the regular
    rate at which he is employed. Sums paid as commissions,
    drawing accounts, bonuses, or other incentive pay based on
                                                                   6


     sales or production, shall be excluded in computing the
     regular rate and the overtime rate of compensation under
     the provisions of this section."

     The overtime statute further provides that "[i]n any work

week in which an employee of a retail business is employed on a

Sunday or certain holidays at a rate of one and one-half times

the regular rate of compensation at which he is employed as

provided in [G. L. c.] 136, the hours so worked on Sunday or

certain holidays shall be excluded from the calculation of

overtime pay as required by this section, unless a collectively

bargained labor agreement provides otherwise."     Additionally,

G. L. c. 136, § 6 (50), the Sunday pay statute, provides that

"[a]ny store or shop . . . which employs more than a total of

seven persons, including the proprietor, on Sunday or any day

throughout the week, shall compensate all employees engaged in

the work performed on Sunday . . . at a rate not less than one

and one-half times the employee's regular rate."

     "Regular rate" is not defined in the overtime statute, but

454 Code Mass. Regs. § 27.02 (2015), a regulation issued by the

Department of Labor Standards (department),8 offers the following

definition of an employee's "regular hourly rate":




     8 This regulation was promulgated by the Department of Labor
Standards (department) "[t]o clarify practices and policies in
the administration and enforcement of [G. L. c. 151]" and
"applies to any employer who employs any person in an occupation
                                                                   7


    "Regular Hourly Rate. The amount that an employee is
    regularly paid for each hour of work. When an employee is
    paid on a piece work basis, salary, or any basis other than
    an hourly rate, the regularly hourly rate shall be
    determined by dividing the employee's total weekly earnings
    by the total hours worked during the week. Regardless of
    the basis used, an employee shall be paid not less than the
    applicable minimum wage each week.[9]

    "The regular hourly rate shall include all remuneration for
    employment paid to, or on behalf of, the employee, but
    shall not include:

    "(a) sums paid as commissions, drawing accounts, bonuses,
    or other incentive pay based on sales or production; or (b)
    sums excluded under 29 U.S.C. § 207(e)."

    Title 454 Code Mass. Regs. § 27.03(3) (2015) further

provides:

    "Overtime Rate. One and one half times an employee's
    regular hourly rate, such regular hourly rate not to be
    less than the basic minimum wage, for work in excess of
    [forty] hours in a work week, except as set forth in
    [G. L.] c. 151, § 1A. . . . Whether a nonexempt employee
    is paid on an hourly, piece work, salary, or any other
    basis, such payments shall not serve to compensate the
    employee for any portion of the overtime rate for hours
    worked over [forty] in a work week, except that this
    limitation only applies to the 'one-half' portion of the
    overtime rate (one and 'one-half' times an employee's
    regular hourly rate) when overtime is determined on a bona
    fide fluctuating workweek basis."10

in accordance with" that statute.   454 Code Mass. Regs. § 27.01
(2015).

    9  The previous version of this sentence stated: "Regardless
of the basis used, whether time rate, commission basis or piece
rate, an employee shall be paid not less than the applicable
minimum wage each week." 455 Code Mass. Regs. § 2.01 (2003).

    10 "[T]he so-called 'fluctuating work week' method of
calculating overtime," as we explained in Goodrow v. Lane
Bryant, Inc., 432 Mass. 165, 176 (2000), refers to "salaried
                                                                   8



     Finally, two opinion letters11 issued by the department

specifically considered the applicability of the overtime

statute to one hundred percent commission employees.12   In a

March 14, 2003 opinion letter (2003 letter), the department

concluded that an "inside sales employee who is paid on a [one

hundred] percent commission basis" is "subject to the state

overtime law."13   The 2003 letter, relying on 455 Code Mass.



employees whose hourly work week varies, and who have an
understanding with their employers that their fixed salary
constitutes straight-time pay for whatever hours they are called
on to work in a work week." This method is not at issue in this
case.

     11An opinion letter interpreting a statute or regulation
"does not have the binding force attributable to a full-blown
regulation." Massachusetts Gen. Hosp. v. Rate Setting Comm'n,
371 Mass. 705, 707 (1977). We will generally defer, however, to
an agency's interpretation contained in an opinion letter if it
is not contradicted by the text or purpose of the underlying
statute. See Swift v. AutoZone, Inc., 441 Mass. 443, 450 (2004)
(explaining, with respect to department opinion letter, that
"[i]n general, we grant substantial deference to an
interpretation of a statute by the administrative agency charged
with its administration," unless that interpretation is
"contrary to plain language of the statute and its underlying
purpose" [citations omitted]). See also Niles v. Huntington
Controls, Inc., 92 Mass. App. Ct. 15, 22 (2017) (judge erred in
failing to give deference to department opinion letters).

     12As explained in note 7, supra, the parties in this case
stipulated that the payment method used by the employers
resulted in the employees being paid on a one hundred percent
commission basis.

     13The March 14, 2003 opinion letter is available at https:
//www.mass.gov/files/documents/2017/10/26/MW%20Opinion%2003-14-
03.pdf [https://perma.cc/WQ6S-DYM6].
                                                                   9


Regs. § 2.01 (2003), further explained that "Massachusetts law

requires that [a one hundred percent commission] employee be

paid at least the equivalent of minimum wage for the first

[forty] hours, and time and one-half minimum wage for all hours

worked over [forty] in a given workweek."   A December 21, 2009

opinion letter (2009 letter) reiterated that "inside

salespersons are subject to the state overtime law" and must "be

paid at least the equivalent of minimum wage . . . for the first

[forty] hours, and time and one-half minimum wage . . . for all

hours worked over [forty] in a given workweek."14      The 2009

letter also included an example:   "If an employee paid on a [one

hundred] percent commissions basis works [fifty] hours in a

given work week, the employee's total compensation for that week

must equal or exceed $450.00 ($320.00 [$8 x 40 hours] + $120.00

[$12 x 10 hours]) [sic]."   Neither letter addressed whether

these calculations were required to be broken down and included

in the wage statements, or otherwise explained to the employees,

or whether a lump sum equaling or exceeding these amounts was

sufficient.

     b.   Entitlement to overtime compensation.   i.    Whether

draws and commissions may be credited against overtime wages.




     14The December 21, 2009 opinion letter is available at
https://www.mass.gov/files/documents/2017/10/06/12-21-
09%20MW%20opinion.pdf [https://perma.cc/W8C3-YEPX].
                                                                    10


    To answer the first certified question, we consider whether

an employer may retroactively allocate draws and commissions as

hourly wages and overtime pay in order to comply with the

premium pay requirements of the overtime statute.   The employees

argue that, under the overtime statute and applicable

regulations, such crediting is not allowed and that they are

entitled to separate and additional overtime pay beyond their

draws and commissions.   The employers do not dispute that one

hundred percent commission employees are subject to the overtime

statute.   They ask us to conclude, however, that they satisfied

this requirement by providing draws and commissions that equaled

or exceeded one times the minimum wage times the number of hours

worked up to forty, plus one and one-half times the minimum wage

for any hours worked beyond forty.   They rely in particular on

the two opinion letters and the calculations they contain.     We

recognize that the opinion letters are less than a model of

clarity and may have misled the employers.   We nonetheless agree

with the employees that such retroactive allocation and

crediting is impermissible and that separate and additional

overtime is owed.   We reach this conclusion based on the

language and purposes of the overtime statute, the regulatory

guidance, and our previous case law establishing that, in most

circumstances, employers may not retroactively reallocate and
                                                                   11


credit payments made to fulfill one set of wage obligations

against separate and independent obligations.

     The purposes of the overtime requirement, as we explained

in Mullally v. Waste Mgt. of Mass., Inc., 452 Mass. 526, 531

(2008), are "to reduce the number of hours of work, encourage

the employment of more persons, and compensate employees for the

burden of a long workweek."   In Mullally, supra at 529, an

employer used a payroll formula founded on a fluctuating "base

pay rate" that reflected the number of overtime hours an

employee actually worked.15   Nonetheless, the employee would

receive "approximately the same hourly wage regardless [of]

whether [he or she] work[ed] overtime."    Id. at 532.   We

concluded that, because the employee was paid at the same hourly

rate "regardless of whether the employee worked forty or fifty

hours," this payroll system undermined the three purposes of the

overtime statute.   Id. at 531-532.   Specifically, the employer

lacked "the economic disincentive intended by [the overtime

statute]," was not encouraged "to hire additional employees,"


     15The employer in Mullally v. Waste Mgt. of Mass., Inc.,
452 Mass. 526, 528 (2008) was required by G. L. c. 149, § 27F,
to compensate its employees at the "prevailing wage rate." The
base rate was set at less than the prevailing wage rate, but the
employer averaged the employees' overtime and nonovertime hours
so that the average hourly rate exceeded the prevailing wage
rate. Id. at 529 & n.7. If the average hourly rate fell below
the prevailing wage rate in a given week, the employer would
provide a "buffer check" to make up the difference. Id. at 529-
530.
                                                                    12


and did "not compensate employees for longer work weeks."     Id.

at 532.

    We relied on Mullally in deciding Somers v. Converged

Access, Inc., 454 Mass. 582, 589 (2009), which involved a

plaintiff who claimed his employer had misclassified him as an

independent contractor, when in fact he was an employee who

"f[e]ll within the protection of . . . G. L. c. 151, § 1A."     A

judge dismissed the plaintiff's claim "because [the employer]

had presented unrefuted evidence that [the employee] had been

paid more as an independent contractor than he would have been

paid in wages and benefits had he been hired as an employee."

Id. at 583.   We reversed, explaining that employers "may not

. . . reduce their obligation to make overtime payments based on

the argument that, had they known they were obliged to pay

overtime, they would have paid the employee a lower wage for the

first forty hours worked in a week."   Id. at 594.   We

specifically stated that "[t]his argument is analogous to (and

as unpersuasive as)" the employer's argument in Mullally that,

"despite the clear mandate of G. L. c. 151, § 1A, it should not

be obliged to pay its employees one and one-half times the

regular rate for overtime work, because, had it realized that it

had this obligation, it would have paid its employees a lower

base wage."   Id. at 591, citing Mullally, 452 Mass. at 531-532.
                                                                   13


    We elaborated on the reasons why employers may not

retroactively reallocate or "credit" payments in the context of

a Wage Act claim in Dixon v. Malden, 464 Mass. 446 (2013).     That

case involved a plaintiff who brought suit against his municipal

employer under the Wage Act for failing to pay him his accrued

vacation days at the time of his termination.    Id. at 448.   The

employer had made "undifferentiated gratuitous weekly payments"

following the employee's termination that exceeded the amount

owed for the unpaid vacation time, leading the judge to dismiss

on the theory that the plaintiff ultimately received more money

than he was owed.   Id. at 446-449.   As in Somers, we reversed,

holding that the "city's payment of salary and benefits after

the plaintiff's termination . . . does not provide a substitute

for payment for accrued vacation time."    Id. at 451.   In support

of this conclusion, we explained that the "city did not

characterize the continued salary payments as payment for

vacation accrual, and the city did not communicate in any way

that the salary continuation was payment for accrued vacation

time. . . .   Gratuitous salary payments, and the benefits

associated with salary payments, do not constitute payment for

earned and accrued vacation time."    Id. at 451-452.

    The Mullally, Somers, and Dixon decisions all demonstrate

that the overtime statute requires separate and additional

overtime compensation to be provided to a one hundred percent
                                                                  14


commission employee regardless of whether that employee receives

a recoverable draw or commissions that equal or exceed one and

one-half times the minimum wage for any hours worked beyond

forty.16   As the court in Mullally, 452 Mass. at 531, emphasized,

an employer must respect the purposes of the overtime law, and

thus pay "time and a half" for overtime, because such payments

are necessary to "reduce the number of hours of work, encourage

the employment of more persons, and compensate employees for the

burden of a long workweek" in conformity with the purposes of

the overtime statute.   In the instant case, the $125 daily

recoverable draw likewise functions as a flat rate payment that

does not change based on whether an employee works overtime.

Here, as in Mullally, the employees are not compensated at a

premium rate for additional hours worked over forty, while the

employers have an incentive to have the employees work more than

forty hours in a week and conversely lack an incentive to hire


     16As discussed infra, G. L. c. 151, § 1A (overtime
statute), and G. L. c. 136, § 6 (50) (Sunday pay statute),
"require an employer to do the same thing," and therefore an
employer is not required to make separate and independent
overtime and Sunday payments. Swift, 441 Mass. at 446. Unless
otherwise indicated, we conclude that the "time-and-a-half"
premium pay provision of the Sunday pay statute has a similar
purpose of creating an "economic disincentive" for employers and
providing additional compensation to employees with respect to
work done on Sunday. Mullally, 452 Mass. at 532. See Ciardi v.
F. Hoffmann-La Roche, Ltd., 436 Mass. 53, 62 (2002) ("Statutes
addressing the same subject matter clearly are to be construed
harmoniously so as to . . . give rise to a consistent body of
law").
                                                                  15


additional employees.    The employers' payment scheme thus

contravenes the purposes of the overtime statute and is not

permissible absent separate and additional overtime payments.

    This analysis is not altered by the fact that the payments

that the employees received always equaled or exceeded one and

one-half times the minimum wage for all overtime hours worked.

The Somers and Dixon decisions likewise involved employees who

received more money than they otherwise would have received had

their wage payments been properly classified in the first place.

In Somers, 454 Mass. at 592, we nonetheless explained that the

Wage Act does not contain a "safe harbor" for such payments on

the grounds that employers would just otherwise lower hourly

payments.   And as we confirmed in Dixon, 464 Mass. at 452,

employers may not retroactively allocate payments made for one

purpose to a different purpose.    If employers could undertake

such retroactive reallocation of payments, they would similarly

lack an incentive to comply with the wage and overtime statutes

in the first place.     The Dixon decision also makes clear the

importance of an upfront communication of the breakdown of the

amounts to the employees.

    We further agree with the employees that 454 Code Mass.

Regs. § 27.03 should be read to prohibit retroactive "crediting"

of payments against an employer's overtime obligations when

those payments were made for a different purpose.     That
                                                                   16


regulation provides that "[w]hether a nonexempt employee is paid

on an hourly, piece work, salary, or any other basis, such

payments shall not serve to compensate the employee for any

portion of the overtime rate for hours worked over [forty] in a

work week."   We interpret this regulation according to the

"plain and ordinary meaning" of its words.   Ingalls v. Board of

Registration in Med., 445 Mass. 291, 294 (2005).   Here, the

plain language of the regulation prohibits crediting payments

made on "any . . . basis" against an employer's overtime

obligations.17   Although a regulation must be invalidated if it

"is contrary to the plain language of the statute and its

underlying purpose," the regulation is thus consistent with the

case law discussed above.    Duarte v. Commissioner of Revenue,

451 Mass. 399, 408 (2008).   In short, the regulation entitles

the employees to separate and additional overtime payments

beyond their draws and commissions.18


     17Admittedly, some confusion is introduced by the reference
to a "portion of the overtime rate" as opposed to a "portion of
the employee's wages paid at the overtime rate." But as
discussed, the phrase "regular hourly rate" in the regulation is
simply being used as a variable in a formula for calculating the
hourly overtime rate of pay. There is no indication that,
because commissions and drawing accounts are excluded from the
calculation of this variable, the Legislature intended to allow
employers to credit commissions against overtime obligations.

     18The employers claim that this interpretation of 454 Code
Mass. Regs. § 27.03 (2015) conflicts with the department's March
14, 2003 and December 21, 2009 opinion letters and that the
                                                                 17


    For the foregoing reasons, we answer "yes" to the question

"[i]f a [one hundred percent] commission inside sales employee

works more than forty hours in a given work week, is the

employee entitled to any additional compensation specifically

for overtime hours worked when the employee's total compensation

(through draws and commissions) for that workweek is equal to or

greater than 1.5 times the employee's regular rate or at least

1.5 times the minimum wage for all hours worked over [forty]

hours in a workweek?"



department interpreted the overtime statute such that separate
and additional overtime compensation is not due to one hundred
percent commission employees. Specifically, the 2003 letter
concluded that "compensation paid as a recoverable draw may
reduce future commissions provided the employee always receives
at least minimum wage for all hours worked and overtime
compensation" and gave two hypothetical "recoverable draw pay
arrangements" involving employees who work fifty hours per week
and receive recoverable draws that equal or exceed the minimum
wage for the first forty hours and the overtime rate of one and
one-half times the minimum wage for the remaining ten hours.

     As discussed in note 11, supra, we will disregard agency
guidance such as an opinion letter if it is contradicted by the
text or purpose of the underlying statute. If the employers'
interpretation were correct, that interpretation would conflict
with the purpose of the overtime statute discussed supra. Here,
however, there is confusion but no direct conflict. The 2003
letter presumed that a one hundred percent commission employee
paid with a recoverable draw receives "at least minimum wage for
all hours worked and overtime compensation" (emphasis added).
In other words, the department correctly identified minimum wage
and overtime pay as separate and independent obligations, even
though the former sometimes may be used as a variable in
calculating the latter. What is left unclear by the opinion
letters is whether this can all be allocated retroactively. We
conclude it cannot.
                                                                  18


     ii.    Employees' regular rate for purposes of calculating

overtime pay.    The Federal District Court also certified the

question: "If additional compensation is due, what is the

employee's regular rate for purposes of calculating overtime

pay?"     We have explained that the term "regular rate" is the

"hourly rate actually paid the employee for the normal,

nonovertime workweek for which he is employed" (citation

omitted).    Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 175

(2000).    The overtime statute states, however, that "[s]ums paid

as commissions" or "drawing accounts . . . shall be excluded in

computing the regular rate" at which an employee is

compensated.19    Title 454 Code Mass. Regs. § 27.02 provides that

"[r]egardless of the basis used, an employee shall be paid not

less than the applicable minimum wage each week."     Furthermore,

as the department explained in its 2003 and 2009 opinion

letters, one hundred percent commission employees must receive

overtime pay at a rate of no less than one and one-half times

the minimum wage.20    We generally defer to an agency's


     19Title 454 Code Mass. Regs. § 27.02 (2015), tracking the
language of G. L. c. 151, § 1A, also states that the employee's
"regular hourly rate" excludes "sums paid as commissions,
drawing accounts, bonuses, or other incentive pay based on sales
or production."

     20As the department explained in its 2009 letter, "in
computing the overtime rate for an employee who is paid on a
[one hundred] percent commission basis, the employee's total
                                                                  19


interpretation of a statute it administers unless this

interpretation is contradicted by the text or purpose of the

underlying statute.   See Swift v. AutoZone, Inc., 441 Mass. 443,

450 (2004).   We agree that the agency's interpretation here is

reasonable.   In response to the question, "[W]hat is the

employee's regular rate for purposes of calculating overtime

pay?" we thus answer, "at least the equivalent of minimum wage."

The overtime rate is thus one and one-half times the minimum

wage for one hundred percent commission employees.

    c.   Entitlement to Sunday pay.   For similar reasons to

those set forth supra, we conclude that the employees are

entitled to separate and additional Sunday pay even though the

employer paid them a recoverable draw that equaled or exceeded

one times the minimum wage times the number of hours they worked

up to forty hours plus one and one-half times the minimum wage

for hours worked on Sunday.   The Sunday pay statute "require[s]

an employer to do the same thing" as the overtime statute,




earnings for purposes of overtime calculation must exclude
commissions. However, pursuant to 455 [Code Mass. Regs.
§] 2.03(3), the employee's regular hourly rate must not be less
than the minimum wage. These two provisions must be read
harmoniously to effectuate a consistent body of law. . . . A
plain reading of the two provisions compels the conclusion that
such an employee be paid at least the equivalent of minimum wage
. . . for the first [forty] hours, and time and one-half minimum
wage . . . for all hours worked over [forty] in a given
workweek."
                                                                    20


namely to provide pay at "not less than one and one-half times

the employee's regular rate" for hours worked on a Sunday.

Swift, 441 Mass. at 446, quoting G. L. c. 136, § 6 (50).

Furthermore, as we held in Swift, supra at 445–446, these

statutes are sufficiently similar that an employer may "credit[]

Sunday premium rate payments toward overtime payments" because

"an employer who credits premium rate payments for Sunday hours

against overtime wages in fact satisfies the express language of

both statutes."   "Statutes addressing the same subject matter

clearly are to be construed harmoniously so as to give full

effect to all of their provisions and give rise to a consistent

body of law."    Ciardi v. F. Hoffmann-La Roche, Ltd., 436 Mass.

53, 62 (2002).    We thus ascribe similar purposes to the premium

pay provision of the Sunday pay law.    See note 16, supra.

Accordingly, we provide the same answers to the second certified

question as we provided to the first one.

    3.   Conclusion.    We answer the certified questions in the

affirmative, with overtime or Sunday pay for a one hundred

percent commission employee to be calculated at one and one-half

times the minimum wage.    The Reporter of Decisions is to furnish

attested copies of this opinion to the clerk of this court.    The

clerk in turn will transmit one copy, under the seal of the

court, to the clerk of the United States District Court for the
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District of Massachusetts, as the answer to the questions

certified, and will also transmit a copy to each party.
