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SJC-12296

            TZE-KIT MUI    vs.   MASSACHUSETTS PORT AUTHORITY.



       Suffolk.           November 6, 2017. - January 29, 2018.

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


Massachusetts Wage Act. Massachusetts Port Authority.         Public
     Employment, Sick leave benefits.



     Civil action commenced in the Superior Court Department on
October 17, 2014.

     The case was heard by Robert B. Gordon, J., on motions for
judgment on the pleadings.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Laurie F. Rubin for the defendant.
     Kevin C. Merritt for the plaintiff.
     David J. Fried, for Massachusetts Employment Lawyers
Association, amicus curiae, submitted a brief.


    BUDD, J.      The plaintiff, Tze-Kit Mui, sued his former

employer, Massachusetts Port Authority (Massport or agency),

alleging that Massport failed to timely compensate him for his

accrued, unused sick time under the Wage Act, G. L. c. 149,
                                                                   2


§§ 148, 150 (Wage Act or act).   A Superior Court judge allowed

Mui's motion for judgment on the pleadings.   Massport appealed,

and we transferred the case here on our own initiative.     Because

we conclude that payment for accrued, unused sick time (sick

pay) does not count as "wages" under the act, we vacate the

judgment and remand the matter to the Superior Court.1

     Background.   In 2013, Massport initiated disciplinary

proceedings against Mui, a longtime employee.2   One week later,

he applied for retirement.   Massport's employees' retirement

system set Mui's retirement date retroactively, despite the fact

that the disciplinary proceedings had not been resolved.

Several weeks later, Massport discharged Mui for cause.3    The

termination was subsequently overturned pursuant to a grievance

procedure.4

     Under Massport's sick pay policy, eligible employees

receive payment for a percentage of the value of their accrued,

     1
       We acknowledge the amicus brief submitted by the
Massachusetts Employment Lawyers Association.
     2
       The disciplinary proceedings were in connection with Tze-
Kit Mui having been charged with arson and several counts of
attempted murder as a result of actions he took during a suicide
attempt.
     3
       Mui later pleaded nolo contendere to the lesser charges of
wanton destruction of property over $250 and threat to commit a
crime.
     4
       The arbitrator determined that, notwithstanding the reason
for the termination, it was not possible to discharge an
employee who had already retired.
                                                                        3


unused sick time upon separation from the agency.5      Employees who

are discharged for cause are not eligible for sick pay.

       Prior to the completion of the grievance process,

Massport's position was that because the agency initiated

disciplinary proceedings against Mui by suspending him prior to

his application for retirement, and then terminated him (an

action that was later reversed), he was not entitled to any sick

pay.       Once the arbitrator ruled that Massport could not

terminate Mui because he had already retired, the agency paid

the value of Mui's accrued sick time pursuant to its policy.

Because of the grievance proceedings, however, the payment was

made over one year later than Mui's effective retirement date.6

       Mui brought suit against Massport, claiming that the agency

violated the Wage Act by failing to compensate him for his

accrued, unused sick time within the time frame mandated by the

act.       The Superior Court judge agreed and allowed Mui's motion

for judgment on the pleadings.       This appeal followed.

       Discussion.     Originally enacted in 1879, the purpose of the

Wage Act is "to protect employees and their right to wages."

       5
       The percentage an employee receives depends upon when the
employee began at the agency and the length of his or her tenure
there. Under the policy, employees who remain with
Massachusetts Port Authority (Massport) until retirement or
death, and employees who accrued sick time prior to 2007,
receive higher rates of compensation.
       6
       At the time of his retirement, Mui had accrued 2,232 hours
of sick time, for which Massport paid him $46,755.41.
                                                                      4


Electronic Data Sys. Corp. v. Attorney Gen., 454 Mass. 63, 70

(2009).     Among other things, the Wage Act requires the payment

of wages on a weekly or biweekly basis.     The act provides that

"any employee leaving his [or her] employment shall be paid in

full on the following regular pay day," and that "any employee

discharged from . . . employment shall be paid in full on the

day of his discharge . . . the wages or salary earned by him."

G. L. c. 149, § 148.     Violations of the act result in strict

liability and treble damages in the civil context, as well as

potential criminal liability.     G. L. c. 149, §§ 27C, 148, 150.

Mui argues that because his sick pay, as wages under the act,

was not paid to him until well after he separated from Massport,

the agency violated the act (and, thus, owes him treble

damages).

    Whether the Wage Act encompasses sick pay is a question of

statutory interpretation requiring de novo review.     Commonwealth

v. Martin, 476 Mass. 72, 75 (2016).     Our analysis begins with

the plain language of the statute, which is the "principal

source of insight into legislative intent."     Water Dep't of

Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744

(2010), quoting Providence & Worcester R.R. v. Energy Facilities

Siting Bd., 453 Mass. 135, 142 (2009).

    The act does not define "wages" per se, but does state that

"'wages' shall include any holiday or vacation payments due an
                                                                    5


employee under an oral or written agreement."   G. L. c. 149,

§ 148.   Additionally, the term encompasses "commissions when the

amount of such commissions . . . has been definitely determined

and has become due and payable to [the] employee."   Id.

    Notably, the act does not mention sick pay.    Certainly, the

absence of an explicit reference to sick pay in the statute does

not end our inquiry.   "The word 'include' in a statute generally

signals that entities not specifically enumerated are not

[necessarily] excluded."   2A N.J. Singer & S. Singer, Statutes

and Statutory Construction § 47:25 (7th ed. rev. 2014).      See

Federal Election Comm'n v. Massachusetts Citizens for Life,

Inc., 769 F.2d 13, 17 (1985), judgment aff'd, 479 U.S. 238

(1986) (noting use of word "include" means list is not

exclusive).

    However, ordinarily we will not add language to a statute

where the Legislature itself has not done so.   See Dartt v.

Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 9 (1998)

(court will not add language to statute that Legislature could

have, but did not, include).   Further, we have previously

declined to expand the meaning of "wages" under the act to other

types of compensation not expressly mentioned in the statute.

See, e.g., Weems v. Citigroup, Inc., 453 Mass. 147, 155-156

(2009) (discretionary bonuses not considered wages); Boston

Police Patrolmen's Ass'n, Inc. v. Boston, 435 Mass. 718, 720-721
                                                                     6


(2002) (tax-exempt deferred compensation not considered wages).

See also Prozinski v. Northeast Real Estate Servs., LLC, 59

Mass. App. Ct. 599, 603-605 (2003) (severance pay not considered

to be wages where payment was contingent upon circumstances of

separation).    Upon review, we discern no reason to conclude that

the Legislature intended to include sick pay as "wages" under

the Wage Act.

    Like vacation time, sick time is often accrued as one works

for an employer.   However, unlike vacation time, which can be

used for time away from work for any reason, sick time is to be

used only when the employee or a family member is ill.     See

G. L. c. 149, § 148C (a) (defining sick time).    Thus, because

its usage is conditional, i.e., employees do not have an

absolute right to spend down their sick time, employees are not

typically compensated for accrued, unused sick time.     G. L.

c. 149, § 148C (d) (7) (employers not required to compensate for

unused sick time).    And although an employee may use accrued

sick time under appropriate conditions, such time may be

considered "lost" if not used.    Such "use it or lose it" sick

time policies are common.   R.J. Nobile, Guide to Employee

Handbooks:   A Model for Management with Commentary § 7:113

(2017).   Because accrued, unused sick time is not compensable

under a "use it or lose it" sick time policy, such time clearly

is not a wage under the act.
                                                                       7


    However, under Massport's sick time policy, rather than

requiring employees to forfeit any accrued, unused sick time

when they separate from the agency, Massport pays departing

employees a certain percentage of that sick time.       This

compensation is payable under two conditions:     the employee must

have worked at Massport for at least two years, and he or she

must not have been terminated for cause.    It is, essentially, a

contingent bonus paid to separating employees for not having

used all of their accrued sick time and not engaging in conduct

warranting termination for cause.

    The only contingent compensation recognized expressly in

the act is commissions, which are considered wages when they

"ha[ve] been definitely determined and due and ha[ve] become

payable to [the] employee."    G. L. c. 149, § 148.    We have not

broadly construed the term "wages" for the purposes of the act

to encompass any other type of contingent compensation.        See,

e.g., Weems, 453 Mass. at 153-156.

    In Weems, we evaluated a bonus program through which the

employer offered bonuses in the form of restricted stock

options.   Id. at 148-149.    The stock options were transferred to

the employee contingent upon the employee remaining with the

company for the time it took the stock to vest.       Id. at 149.     We

held that the forfeiture provision of the program did not

violate the Wage Act, concluding that the bonuses did not
                                                                   8


constitute wages under the act because they were contingent upon

employment with the company at the time the options vested.      Id.

at 153-154.   We see little difference between the bonus stock

options in Weems, which were only transferable to the employee

if he or she is employed at the time the options vest, and the

sick pay at issue here, which is only available to departing

Massport employees meeting certain criteria.7

     Furthermore, the designation of sick pay as wages in these

circumstances would put Massport in the position of being unable

to comply with the Wage Act.   Mui separated from Massport during

the pendency of disciplinary proceedings that ultimately ended

in the agency seeking to terminate his employment.   Thus, the

question whether the agency owed Mui any sick pay at all was in

dispute at the time of Mui's separation; the issue was not

resolved until well after the Wage Act deadline had passed.

     In fact, if sick pay were a wage under the Wage Act,

Massport would not have been able to comply with the act even

without the then-pending grievance procedure.   The retirement

board set a retroactive retirement date, but did not do so until

after payment of all "wages" would have been due, assuming at

     7
       In Weems v. Citigroup, Inc., 453 Mass. 147, 154 (2009), we
noted that the stock option bonus program was also
discretionary. However, because the discretion to award the
bonuses had already been exercised in the plaintiffs' favor, the
plaintiffs in Weems were in the same position as Mui in that
they were both promised bonus compensation under particular
conditions.
                                                                   9


most a biweekly pay period.   G. L. c. 149, § 148.

    Because Massport would not have been able to compensate Mui

for sick time within the required Wage Act time frame,

construing sick time compensation as wages under the Act would

put Massport in an impossible position.   "[W]herever possible

. . . we read [statutes] in a commonsense way to . . . avoid

absurd results" (citations omitted).    Commonwealth v. Morgan,

476 Mass. 768, 778 (2017).    See Commonwealth v. Traylor, 472

Mass. 260, 269 (2015) (penal statutes are to be construed

strictly).

    Conclusion.   For all of the foregoing reasons, the judgment

is vacated and the case is remanded to the Superior Court for

entry of an order allowing Massport's motion for judgment on the

pleadings.

                                    So ordered.
