A committee of the Massachusetts state legislature held a hearing on November 3, 2011 to take input on 4 pending bills that aim to revise the state’s independent contractor statute. The law has been under fire from some circles due to language that, read literally, essentially bans the use of contractors in Massachusetts. It’s not the first time opposition forces have pressed for rewriting of the law. A similar effort last year was unsuccessful.
The independent contractor law appears at Mass. Gen. L. ch. 149, s. 148B. It requires that all workers be classified as employees unless the employer demonstrates that 1. the worker is free from control in the performance of daily duties; 2. the work performed is outside the usual course of the employer’s business; and 3. the worker is customarily engaged in an independent business. Its rewriting to this form in 2004 effectively banned the legal use of contractors, since almost no employer can meet the second prong of this three-part test and many cannot meet the other two.
In recent years, the law has been increasingly criticized as enforcement actions from both government and the private sector have multiplied. Since misclassfications are illegal regardless whether a worker agrees to them, and because the Wage Act (of which the independent contractor law is a part) provides for substantial damages against employers, attacks are now common. Transgressors of the independent contractor law may be forced to pay damages in the form of unpaid wages, social security benefits, worker expenses, and health insurance costs. As with other violations of the Wage Act, all damages are mandatorily tripled and successful plaintiffs are entitled to legal fees and costs.