February 18, 2020 Retaliatory firing deprived worker of commissions that ripened later but legal penalties tripled the entire sum. Massachusetts SJC Parker v EnterNOC, Inc. (2020) FACTS Parker made a base salary and commissions working for EnterNOC marketing energy efficiency services. Parker made a $20M sale to occur over 5 years but only the first year was guaranteed, the deal could be terminated after that. The EnterNOC commission policy paid the guaranteed portion of the contract and on the entire value of the contract when the deal survived the opt out. Salespeople could be fired at any time and commissions were to end upon firing. Parker complained that the employer miscalculated her commission, weeks later she was paid some commission on the guaranteed portion and months later she was fired. LEGAL STANDARD The Massachusetts Wage Act applies to commissions that are ‘definitely determined… and due and payable’. The Massachusetts Wage Act prohibits retaliation. JURY FINDING The Jury heard evidence on claims and awarded the following Wage Act violations, Breach of covenant of good faith and fair dealing, retaliation and discrimination on the basis of sex – $40,000 emotional distress and $240,000 punitive damagesbreach of contract both the guaranteed part and full contract commission part – $375,000 ISSUE The Wage Act requires that damages be tripled. Does the later ripening commission amount get tripled? HOLDING Full amount of commission that would have been earned but for the firing = amount to x 3 under Wage Act REASONS Parker was fired for insisting on her commission before the opt out date but would have gotten bigger commissions had she not been fired. The retaliatory termination was a violation of the Wage Act and the commissions that later became definitely determined can be lost wages under the Wage Act if the employer’s violation prevents the employee from getting those commissions. The Wage Act prohibits retaliation against employees for seeking to enforce rights under the Act. Company policy permitting the firing of workers due commissions not enforceable if firing was retaliatory. COBB COMMENT Juries seem to favor workers in Massachusetts Wage Act cases.