TO:                  Business Leader

FROM:            John J. Ferriter, Esquire

DATE:             July 11, 2005

RE:                   Distinguishing Employees from Independent Contractors Under

                       State Wage and Worker?s Compensation Law

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            The Massachusetts Independent Contractor Law creates a presumption that a work arrangements is an employer-employee relationship unless the party receiving the services can overcome the legal presumption of employment by establishing that three factors are present.  First, the worker must be free from the presumed employer?s control and direction in performing the service, both under a contract and in fact.  Second, the service provided by the worker must be outside the employer?s usual course of business.  And, third, the worker must be customarily engaged in an independent trade, occupation, profession or business of the same type.  M.G.L. c. 149, § 148B.

            This rigid, three-part test is unlike the well-established IRS, FLSA, National Labor Relations Act (?NLRA?) and state law tests, which have flexible criteria that must be balanced according to the circumstances of the work arrangement.  Since the independent contractor tests contain ?no shorthand formula or magic phrase that can be applied to find the answer, . . . all the incidents of the relationship must be assessed and weighed with no one factor being decisive.?  NLRB v. United Insurance Co. of America, 390 U.S. 254, 258 (1968); Chase v. Independent Practice Association, 31 Mass. App. Ct. 661, 665 (1991)(?In the employment context, a master-servant relationship is determined by a number of factors?); Dykes v. DePuy, Inc., 140 F.3d 31, 37 (1^st Cir. 1998).  In contrast, the Massachusetts Independent Contractor Law requires proof that the worker meets all three of its requirements.  Otherwise the worker is deemed an employee for purposes of Massachusetts? worker?s compensation and wage law.

            If you have any questions, please feel free to call Attorney Jack Ferriter at 413-535-4200 or email at jferriter@ferriter.com.