Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

148 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP individual is “free from control and direction in connection with the performance of the service, both under his [or her] contract for the performance of the service and in fact.” 865 The initial inquiry examines the contract for services to identify whether the worker was classified as an independent contractor and whether the terms of the contract indicate who would control the individual’s work. At a minimum, a business seeking to classify a worker as an independent contractor should implement an independent contractor agreement and describe the worker as such, although the courts and the Attorney General will go beyond mere labels to scrutinize the actual relationship between the parties. A contract that refers to the individual as an employee may damage the company’s case, but conversely a contract that clearly labels someone as an independent contractor is insufficient by itself to establish independent contractor status. 866 Businesses should also carefully consider the ramifications of including Massachusetts choice of law and forum selection clauses in independent contractor agreements and other contracts with non-employee workers. The Independent Contractor Statute does contain an explicit geographic restriction on its application, and the SJC has held that workers who reside and perform work exclusively in another state can challenge their independent contractor status under the Massachusetts statute if they are parties to an agreement with Massachusetts provisions. 867 The Independent Contractor Statute also requires freedom from the company’s control in fact , and not merely in the terms of the contract. To be free from control “a worker’s activities and duties should actually be carried out with minimal instruction.” 868 These determinations are highly fact- specific. In examining the level of control exerted over an individual, courts have considered a number of factors, such as whether the individual was subject to a dress code, wore a company name tag or uniform, had uniforms available to him or her even if wearing one was not required, drove a company vehicle, used company-provided supplies, was subject to performance reviews or discipline, or set his or her own work schedule. 869 While courts construe the control 865 M.G.L. ch. 149, § 148B(a)(1). See also Weiss v. Loomis, Sayles & Co., Inc. , 97 Mass. App. Ct . 1, 7 (2020) (holding that “ [t]he issue turns on whether [the company] had the right to supervise, direct , and cont rol the details of [the alleged cont ractor’s] performance, or whether [he] was free from supervision not only as to the result to be accomplished but also as the means and methods that are to be ut ilized in the performance of the work”) (internal quotat ions and citat ions omit ted). 866 See Scalli v. Citizens Fin. Grp. , 2006 WL 1581625, at *14 (D. Mass. Feb. 28, 2006) (finding that cont ract which referred to individuals as “employees” weighed against argument that they were independent cont ractors). 867 Taylor v. Eastern Connection Operating , Inc., 465 Mass. 191, 198-200 (2013) (overturning dismissal by t rial court , which had held that the Massachuset t s Independent Cont ractor Statute does not apply to non-Massachuset t s resident s working out side of Massachuset t s). The Court also held in Taylor that if plaint iffs were ult imately successful on their claims that they were employees under the Independent Cont ractor Statute, they could also pursue their payment of wages and overt ime claims, since those claims were predicated on the assert ion that they were employees. Id . at 200. 868 Massachuset t s At torney General Advisory 2008/1, at 3; see also Beck v. Mass. Bay Techs., Inc. , 2017 U.S. Dist . LEXIS 215357, *18 (D. Mass. Sept . 6, 2017) (not ing that the “crux” of the control prong is “whether the worker performs his work in fact with minimal cont rol” and stat ing that the “ test is not so narrowas to require that a worker be ent irely free from direct ion and cont rol from out side forces.”) (internal citat ions and quotat ions omit ted). 869 Coll. News Serv. v. Dep’t of Indus. Accidents , 21 Mass. L. Rpt r. 464, 2006 WL 2830971, at *5-6 (Mass. Super. Ct . Sept . 14, 2006) (list ing funct ions); Hogan v. InStore Group, LLC , No. 17-10027, 2021 U.S. Dist . LEXIS 4395, *32-41 (D. Mass. Jan. 11, 2021) (list ing indicia of cont rol). See also Am. Zurich Ins. Co. v. Dep’t of Indus. Accidents , 21 Mass. L. Rpt r. 224, 2006 WL 2205085, at *3 (Mass. Super. Ct . June 1, 2006) (“ [F]actors used to determine whether the employer controlled and directed the workers’ performance include such things as: (1) whether the worker is paid by the job or by the hour; (2) whether the employer provides tools, equipment , or materials on the job; and (3) whether the relat ionship can be terminatedwithout any liability on the part of the employer.”); RainbowDev., LLC v. Commonwealth, Dep’t of Indus. Accidents , 20 Mass. L. Rpt r. 277, 2005 WL