As I have previously warned in prior blog posts here and here, the Massachusetts Wage Act exposes a company and individuals having management responsibility for the company to mandatory treble damages and attorneys’ fees for failing to pay wages.  Because the statute, however, does not define the term “wages,” employees have attempted to apply the Wage Act’s beneficial damages provision to any type of compensation.  A true “bonus” need not be wages and the failure to pay a bonus would then not subject an employer or its management to the risk of treble damages or attorneys’ fees.  Nevertheless, it is not always easy to determine if a particular payment is a bonus or wages.

A recent Massachusetts case, Boesel v. Swaptree, Inc., helped clarify the distinction between wages and a bonus.  Specifically, Boesel discussed three provisions in an employment agreement that can be used to clarify how the payment to an employee should be characterized:

• Describe a bonus in a provision that is separate from the provision describing base salary.  In Boesel, the plaintiff argued that the discretionary bonus in his employment agreement was earned ratably over the course of the year and was part of

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