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

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 149 requirement strictly, many also note that the test is not so narrow as to require workers to be entirely “free from direction and control from outside sources.” 870 The Attorney General recognizes that even bona fide independent contractors typically work under some level of supervision, but businesses should be prepared to show that supervision was minimal. 871 In 2015, the SJC held that taxi cab medallion owners and radio associations met their burden of proof under the ABC test’s first prong—control exercised by the employer—by establishing that taxi cab drivers were sufficiently free from the control required under the statute. 872 In reaching that conclusion, the SJC observed that the drivers: (1) chose the shifts that they worked; (2) were free to transport as many or as few passengers as they wished; (3) were “free to operate” their own businesses transporting customers for fares; (4) could contract with other medallion owners and utilize different radio associations; (5) were free to accept or decline dispatches; and (6) signed lease agreements that demonstrated freedom from direction and control. 873 Although the drivers were subject to certain restrictions regarding their “appearance, cellular telephone usage, ability to smoke, . . . treatment of passengers, meter rates, and geographic areas of operation,” those indications of control were not imposed by the defendants, but rather by regulations governing the entire Boston taxi cab industry promulgated by the Boston Police Commissioner pursuant to authority delegated by the Massachusetts legislature. 874 2. Services Provided Are Outside the Usual Course of Business The second prong of the ABC test, which is arguably the hardest to satisfy, requires that the individual’s services be performed outside the “usual course of business of the employer.” 875 Unfortunately, the Independent Contractor Statute does not define “usual course of business,” making a determination under this second prong as fact-specific as the first. 876 A business cannot meet this requirement simply by showing that the individual did his or her work at an outside 3543770, at *3 (Mass. Super. Ct . Nov. 19, 2005) (defendant monitored individuals’ job performance, required them to drive company vehicles, and made company shirt s available); Amero v. Townsend Oil Co., No. ESCV2007-1080-C (Mass. Super. Ct . Dec. 3, 2008) (holding that first prong of ABC test was not sat isfiedwhen employer required delivery t ruck driver to sign covenant not to compete, paint company’s logo on his t ruck, and wear a uniform, and where employer cont rolled driver’s customer list and set prices); Driscoll v. Worcester Telegram & Gazette , 72 Mass. App. Ct . 709, 714 (2008) (holding that first prong of ABC test was not sat isfiedwhen a newspaper “cont rolled virtually all aspect s” of service provided by it s carriers, including select ing their customers; set t ing order of their deliveries and prices charged; reserving right to demand addit ional services from carriers; and direct ly supervising their work on daily basis). While these cases arose under the Unemployment Statute, the first prong of the ABC test is ident ical under the Massachuset t s Unemployment Insurance and Independent Cont ractor Statutes. 870 Athol , 439 Mass. at 178 (interpreting the Unemployment Insurance Statute, M.G.L. ch. 151A, § 2). 871 Massachuset t s At torney General Advisory 2008/1, at 2. 872 Sebago , 471 Mass. at 332-33. 873 Id . 874 Id. at 322, 333. 875 M.G.L. ch. 149, § 148B(a)(2). 876 See id.