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

150 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP location. 877 Rather, under the revised Independent Contractor Statute, the inquiry under the second prong focuses on the nature of the work at issue. The SJC has said that “a purported employer’s own definition of its business is indicative of the usual course of business.” 878 Also, relying on the Attorney General’s 148B Advisory, the SJC noted that another factor in determining the “usual course of business” is “whether the service the individual is performing is necessary to the business of the employing unit or merely incidental.” 879 Using this “necessary” versus “incidental” framework, the 148B Advisory lists two examples of relationships that, according to the Attorney General, would not satisfy the “usual course of business” prong under the Independent Contractor Statute: (1) a drywall company that classifies drywall installers as independent contractors; and (2) a motor vehicle appraisal company that classifies appraisers as independent contractors. 880 In each example, the 148B Advisory notes that the individual performing the work is performing an “essential part” of the company’s business, and therefore, the company cannot satisfy the “usual course of business” prong. 881 On the other hand, the 148B Advisory reflects that an individual moving furniture for an accounting firm would be acceptable under the “usual course of business” prong “because the moving of furniture is incidental and not necessary to the accounting firm’s business.” 882 In Sebago , discussed above, the SJC also concluded that taxi cab drivers (in the business of transporting customers for fares) performed their services outside the “usual course of business” of taxi cab medallion owners (in the business of leasing taxis) and radio associations (in the business of providing dispatch services). 883 The Court observed that the medallion owners’ and radio associations’ businesses were “not directly dependent on” the drivers’ services. 884 Accordingly, the companies at issue satisfied the second prong. However, in another case, the Appeals Court held that newspaper delivery drivers performed services within the usual course of business where the company described itself as being in the business of “publishing and distributing” newspapers and was “directly dependent on the success of the drivers endeavors.” 885 877 This dist inguishes the Independent Cont ractor Statute from the standard applicable under the Unemployment Insurance Statute. Under the Unemployment Insurance Statute, a company can sat isfy the second prong by demonst rat ing that the worker performed his or her services either out side the company’s “usual course of business” or out side the company’s “places of business.” M.G.L. ch. 151A, § 2(b). 878 Sebago , 471 Mass. at 333 (cit ing Athol , 439 Mass. at 179); see also Chebotnikov v. LimoLink, Inc. , 2017 U.S. Dist . LEXIS 104577, *23 (D. Mass. July 6, 2017) (not ing that the usual course of business prong depends, in part , on how the “business is defined” and denying summary judgment to drivers where LimoLink described it self as a business that “manages reservat ions” as opposed to a company that “provides limousine services”). 879 Id . (quot ing Massachuset t s At torney General Advisory 2008/1, at 6); see also Rosenthal v. Romano Group, Inc. , 89 Mass. App. Ct . 1132 (2016) (“We focus our analysis on the realit ies of [the company’s] actual business operat ions, . . . and not just the employer’s descript ion of the business.”) (internal quotat ions and citat ions excluded). 880 Massachuset t s At torney General Advisory 2008/1, at 6. 881 Id . 882 Id . 883 Sebago , 471 Mass. at 333-36. 884 Id . at 334, 335. 885 Carey v. Gatehouse Media Mass. I, Inc. , 92 Mass. App. Ct . 801, 805, 810 (2018) (quot ing Sebago , 471 Mass. at 334).