Independent Contractors (Office of the Attorney General)

• Prior to July 19, 2004, whether a worker should be classified as an employee or an independent contractor was determined by reference to the common-law multi-factor balancing test of the employer's "right of control" over the individual. The more direction and control an employer exercises over an individual, the greater chance that individual would be deemed to be an employee. See, e.g., Commonwealth v. Savage, 31 Mass. App. Ct. 714, 717 (1991)


• Under a Massachusetts statute (M.G.L.c. 149, s. 148B) an individual performing any service is considered an employee unless:
  • the individual is free from control and direction in connection with the performance of his services, both by contract and fact;
  • the service is performed outside the usual course of the business of the employer; and
  • the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
  
  
• An individual "performing any service" requires labor performed in the interest or under the direction of the putative employer, whether paid or unpaid. Patel v. 7-Eleven, Inc., 494 Mass. 562 (2024)


• Where a franchisee is an "individual performing any service" for the franchisor, the three-prong test set forth in the independent contractor statute applies to the relationship between a franchisor and the individual. Patel v. 7-Eleven, Inc., 489 Mass. 356 (2022)


• Where the individual provides services to the employer through an intermediary entity, the individual may not have standing to pursue a misclassification claim because the statute was not intended to bar legitimate business-to-business relationships. Weis v. Loomis, Sayles & Company, Inc., 104 Mass. App. Ct. 1 (2024)


• This statute is enforced by the Office of the Massachusetts Attorney General. Employees whose rights under this statute have been violated can file an online complaint under "Non-Payment of Wage" and "Independent contractor misclassification" and receive from the Attorney General a "private right of action" letter, allowing the employee so aggrieved to file a court complaint within three years of the violation. The three year limitation period is tolled from the date that the employee or a similarly situated employee files a complaint with the Attorney General until the date that the Attorney General issues a letter authorizing a private right of action or the date that an enforcement action by the Attorney General becomes final. An employee who prevails shall be awarded treble damages, reasonable attorneys' fees and the cost of litigation.


• Under this statute if the employer fails to prove that the employee is an independent contractor, an assessment of damages incurred should include holiday pay, vacation pay, and other benefits he would have received as an employee, as well as overtime, if appicable. And under M.G.L.c. 149, s. 150, the employee would also be entitled to treble damages for all lost wages and benefits and attorney's fees. Somers v. Converged Access, Inc., 454 Mass. 582 (2009)

   

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