Case: Mui v. Massachusetts Port Authority, 478 Mass. 710 (2018)


Topic: Sick Time; Timely Payment; 


Plaintiff’s Problem: Can my unused sick time be considered wages?


Plaintiff’s Background: The plaintiff, Tze-Kit Mui, sued his former employer, the Massachusetts Port Authority (“MassPort”), alleging that MassPort failed to timely compensate him for his accrued, unused sick time under the Wage Act.

In 2013, MassPort started disciplinary proceedings against Tze-Kit Mui, one-week later Mui 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 Mui was discharged by MassPort for cause. Under MassPort’s sick pay policy,  employees receive payment for a percentage of the value of their accrued, unused sick time upon separation from the job, unless they are discharged for cause. If an employee is discharged for cause they are not eligible for any payment for unused sick leave. Based on MassPort’s policy Mui was not paid for any unused sick time upon his termination. However, because of union grievance procedures, Mui’s termination was overturned. An arbitrator determined that his termination was not for cause. At the time of his retirement, Mui had accrued 2,232 hours of sick time, for which MassPort paid him $46,755.41— a year after his separation from them.

Under the Massachusetts Wage Act, “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”.

Mui sued MassPort asserting that the accrued, unused sick leave pay to which he was entitled constituted “wages” under the Wage Act and should have been paid at the time he retired from the company.


What The Court Said: No. Payment for accrued, unused sick time (sick pay) does not count as “wages” under the Wage Act.

The Wage Act does not define “wages” per se but does state that “ ‘wages’ shall include any holiday or vacation payments due an employee under an oral or written agreement.”  Additionally, the term “wages” encompasses “commissions when the amount of such commissions … has been definitely determined and has become due and payable to [the] employee.”

From the perspective of the Supreme Judicial Court (SJC), the Wage Act does not mention sick pay therefore they cannot and will not add language to a statute. After reviewing the Wage Act, the SJC determined that the intent of the statute did not include sick pay as “wages”.

Unlike wages, sick time is conditional. Similarly, like vacation time, sick time is accrued as an employee continues to work for an employer. The distinction is that vacation time  can be used for time away from work for any reason, whereas sick time is to be used only when the employee or a family member is ill. 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. Although an employee may use accrued sick time under appropriate conditions, such time may be considered ‘lost’ if not used. 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 Wage Act.