Independent Contractors in Fall River, New Bedford, Pittsfield, Worcester, Springfield, Lowell and the Cape may be Misclassified

Most individuals in Massachusetts who perform work for an entity are employees, not independent contractors.  In fact, it's very difficult to properly treat someone as an independent contractor under Massachusetts law.  Below is a summary of the test entities must satisfy in order to successfully classifying someone as an independent contractor.  This test applies to independent contractors and employers across Massachusetts, from Pittsfield to Adams, Springfield to Worcester, Lawrence to Lowell, Fall River to New Bedford, and on the Cape.  

The Massachusetts 3-part test (“ABC Test”) regarding independent contractors

Prong One:  This prong requires the independent contractor to be free from control and direction in connection with the performance of the service.  An independent contractor, unlike an employee, completes the job using his or her own approach with little direction and dictates the hours that he or she will perform the job.  Translation, the more someone is supervised, the more likely they are to be an employer. 

Prong Two:  This prong of the test requires that the service the independent contractor performs be outside the course of the employer's business.  This part of the test is easily the most difficult for employer's to satisfy.  There is not much by way of guidance here, but the Attorney General's office has provided two examples.  A drywall company cannot classify someone as independent contractor who is installing drywall but installing drywall is, obviously, within the scope of the drywall company's business.  However, an accounting firm can classify someone as an independent contractor who moves furniture because the accounting firm, presumably, is not in the furniture moving business.  

Prong Three:  This prong of the test requires employers to establish that the independent contractor is customarily engaged in an established trade, occupation, profession, or business of the same nature as that involved in the service performed.  

Employers have to satisfy all three parts of this test in order to properly classify someone as an independent contractor.  An employer's failure to withhold taxes, provide unemployment / workers' compensation benefits is not considered relevant when determining whether someone is an independent contractor.  Neither is the employer's intent behind the classification or whether they classified the independent contract in good faith.  

Individuals who are misclassified as independent contractors are likely to have claims under Massachusetts Wage Act for unpaid wages or overtime and may have claims for unlawful retaliation, discrimination, or harassment. Contact us today with questions.