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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.

11 An 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).

12 As 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.

13 The 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.

 

14 The 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," 

 

15 The 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 

 

16 As 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

 

17 Admittedly, 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.

18 The 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 

 

19 Title 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."

20 As 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 
21

District of Massachusetts, as the answer to the questions 

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