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. | 153 Although the First Circuit referred to the “usual course of business” prong as “‘something of an anomaly’ among state wage laws,” the court did not conclude that the prong is preempted by the FAAAA in all cases involving motor carriers. Rather, the First Circuit held that the second prong was preempted as the plaintiffs proposed to apply it in the particular cases before the court. 903 3. Independent Trade , Occupation, Profession, or Business The third prong of the ABC test requires a business to demonstrate that the individual is “customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the services performed.” 904 This prong focuses on whether the individual could provide the service to anyone willing to engage his or her services (which suggests independent contractor status) or whether the nature of the work requires him or her to depend on a single employer (which suggests employee status). 905 While the statute requires that there be the potential for an independent business, it is not necessary that the individual actually run his or her own enterprise. 906 For instance, the SJC ruled in Sebago that taxi cab drivers were independent contractors when they were free to (1) lease taxi cabs from different medallion owners that used different dispatch services, (2) accept or reject dispatches, and (3) “advertise their services through personalized business cards.” 907 Likewise, news carriers were found to be independent contractors when they were free to deliver papers from other publishers along their routes and to advertise their delivery services to others. 908 Similarly, construction subcontractors met this requirement when they were free to work for competing general contractors if they so desired. 909 On the other hand, if a company affirmatively restricts a contractor’s ability to provide services to others, such restrictions could be deemed to reflect a lack of independence. 910 “usual course of business” prongwould “pose[] a serious potent ial impediment to the achievements of the FAAAA’s object ives because a court , rather than the market participant, would ult imately determine what services that company provides and how it chooses to provide them”). 903 Massachusetts Delivery Assn. , 821 F.3d at 192-93; Schwann , 813 F.3d at 437-40. 904 M.G.L. ch. 149, § 148B(a)(3). 905 Sebago , 471 Mass. at 336 (quot ing Athol , 439 Mass. at 180-81). 906 Sebago , 471 Mass. at 336; Athol , 439 Mass. at 180. 907 Sebago , 471 Mass. at 336-37. 908 Athol , 439 Mass. at 181-82 (interpreting the Unemployment Statute, M.G.L. ch. 151A, § 2). See also Coll. News Serv. , 2006 WL 2830971, at *6 (finding that newspaper carriers were independent cont ractors because they could choose to work for compet ing publishers). 909 Am. Zurich Ins. , 2006 WL 2205085, at *5; but see RainbowDev ., 2005 WL 3543770, at *3 (finding that workers did not qualify as independent cont ractors under third prong of ABC test where they were not “carrying on their own business,” as evidenced by fact that they did not carry general liability insurance and were not bonded) (internal quotat ions and citat ion omit ted). One court , however, held that a delivery t ruck driver who formed his own corporat ion was st ill an employee because the first prong of the ABC test was not sat isfied, and the employee’s business was a “mere shell corporat ion” established to limit his liability and afford him tax savings. Amero , No. ESCV2007-1080-C (Mass. Super. Ct . Dec. 3, 2008). 910 Weiss , 97 Mass. App. Ct . at 10 (holding that a jury could have found that the plaint iff was not free to provide services to others, stat ing that “ [o]f part icular significance was the rest rict ion inserted by [the company] in the cont ract that [the plaint iff] was only free to work for others ‘so long as such act ions [did] not impair [his] ability to perform his… services to [the company]’”).