- Under common law the test whether a person was an employee or an independent contractor was 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 will be deemed to he an employee.
- 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.
- 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., No. SJC - 13166, __ Mass. __ (2022)
- 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)