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A call from the Supreme Judicial Court on the (non)uniformity of employment classification statutes

Massachusetts wage laws misclassification

In Ives Camargo's Case, issued today, the highest court in Massachusetts confirmed that there are varying statutory tests to determine employee verses independent contractor status for purposes of the workers' compensation, unemployment insurance, wage, and tax withholding laws:

Our laws have imposed differing, and not uniform, definitions of employees and independent contractors. Currently, there are at least four distinct methods used to determine employment status in the Commonwealth. General Laws c. 152, § 1, provides a definition of an employee for workers' compensation claims, and the department uses the MacTavish-Whitman factors to determine employment status. General Laws c. 149, § 148B, provides a three-prong test to define employment status under G. L. cc. 149 and 151. A third definition is provided in G. L. c. 151A, § 2, for the purpose of unemployment insurance, which uses a three-prong test that is similar to, but distinct from, the test in G. L. c. 149, § 148B. In particular, the second prong expands the definition of independent contractor from work performed outside "the usual course of business" to include work performed "outside of all the places of business." See Athol Daily News v. Board of Review of the Div. of Employment & Training, 439 Mass. 171, 176, 179 (2003) (board erred in awarding unemployment insurance to newspaper carriers by failing to consider importance of their making deliveries outside of business premises). Finally, a fourth definition of employee is provided in G. L. c. 62B, § 1, for the purposes of withholding taxes on wages, and the department of revenue applies the Internal Revenue Code's twenty-factor analysis to determine employment status. See Technical Information Release 05-11 (Sept. 13, 2005), Official MassTax Guide, at PSW-206 (Thomson Reuters 2018) (amendments to G. L. c. 149, § 148B, do not change statutory definition of "employee" found in G. L. c. 62B).

I spent a considerable amount of time while working at the Attorney General's Office enforcing -- and defending -- G. L. c. 149, § 148B, and the above was always my view.

What is most interesting to me about this decision is the several page concurrence at the end by several justices, including the Chief Justice, urging the Legislature to attend to the practical problems that arise because four different work-related statutes can result in different status determinations -- and consequent rights and benefits -- for the same worker. In other words, under the workers' compensation statute, one could legally be classified an independent contractor, whereas for purposes of the wage laws, the exact same worker must legally be classified as an employee. As the concurrence notes, this dissonance results in unnecessary misunderstandings by workers and increased difficulties to the state as to its enforcement.

The concurrence points to Maine as an example of a state that has "adopted a single, uniform standard for determining employment status under unemployment insurance, workers' compensation, and other employment laws" and to Illinois and New Hampshire as states that have "introduced measures designed to provide more guidance to workers as to their employment status."

Ultimately, the concurring justices note that the question is for the Legislature, but they pointedly suggest it is "a pressing one -- which [the Chief Justice] invite[s] the Legislature to address."

Perhaps we shall see some bills soon.

Doorways Employment Law is a virtual employment law practice, leveraging the power of technology to connect with clients in the most efficient and convenient way possible. It specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on wage and employment classification matters. Contact Doorway Employment Law for an employment law consultation.

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